Pantazis v. Tsourides

26 Mass. L. Rptr. 283
CourtMassachusetts Superior Court
DecidedOctober 27, 2009
DocketNo. 992362C
StatusPublished

This text of 26 Mass. L. Rptr. 283 (Pantazis v. Tsourides) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pantazis v. Tsourides, 26 Mass. L. Rptr. 283 (Mass. Ct. App. 2009).

Opinion

Lemire, James R., J.

BACKGROUND

This action was brought by Paul Pantazis (Paul) in which he claims that the defendants as trustees of the New Deal Realty Trust (“NDR Trust” or the “Trust”) breached certain duties to the Trust and to its beneficiaries. The court after a juiy-waived trial entered judgment for the plaintiff and ordered both defendants to pay substantial amounts to the Trust.

Additionally, this court ordered that the plaintiff was entitled to be reimbursed from the assets of the NDR Trust for attorneys fees incurred in his successful prosecution of his claims against the Trustees.1 The plaintiff has filed an application for an award for attorneys fees and costs in the amount of $557,427.53 and expert costs in the amount of $60,702.94.

After hearing and upon consideration of the arguments of the parties, the motion record and the authorities relied upon, the plaintiffs application is ALLOWED IN PART and DENIED IN PART.

DISCUSSION

A trial judge has broad discretion in determining what is a reasonable amount to award a party for attorneys fees. Berman v. Linnane, 434 Mass. 301, 302-03 (2001). The focus of the award is on neither the bill submitted nor the amount in controversy. Id. at 303. To determine the reasonableness of the fee, the court uses the “lodestar” approach. Fontaine v. EBTEC Corp., 415 Mass. 309, 324 (1993). Under the “lodestar” approach, the court multiples the “number of hours reasonably spent on the case times a reasonable hourly rate.” Id. The party seeking attorneys fees bears the burden of establishing the reasonableness of both the hourly rate and the number of hours billed. See Society of Jesus of New Eng v. Boston Landmarks Comm’n, 411 Mass. 754, 759 (1992). “In making this calculation, the court should consider the time counsel spent on the case exclusive of hours that are excessive, redundant, duplicative, or unproductive.” T&D Video, Inc. v. Revere, 66 Mass.App.Ct. 461, 476 (2006), reversed on other grounds, 450 Mass. 107 (2007). When reviewing a party’s request for attorneys fees, the judge is not “required to review and allow or disallow each individual item in the bill,” rather the judge may consider the bill in its entirety. Berman, 434 Mass. at 303.

When determining whether the award of attorneys fees is reasonable, the judge should consider the following factors: (1) the length of the trial; (2) the difficulty of the legal and factual issues involved; (3) the degree of competence shown by the attorney; (4) the nature of the case; (5) the time and labor required; (6) the amount of damages involved; (7) the result obtained by the attorney; (8) the experience, reputation, and ability of the attorney; (9) the usual price charged by other attorneys in the area for similar services; and (10) the amount awarded in similar cases. Heller v. Silverbranch Constr. Corp., 376 Mass. 621 (1978); Linthicum v. Archambault, 379 Mass. 381, 388-89, (1979), overturned on other grounds, Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 418 Mass. 737 (1994). In determining the reasonableness of the fee, no one factor is dispositive, and a factor-by-factor approach although helpful, is unnecessary. Berman, 434 Mass. at 303.2

As pointed out in the plaintiffs memorandum, this case took almost ten years to resolve and involved complex legal and factual issues that justify most of the fees and expenses incurred. The result obtained by the plaintiff for the benefit of the NDR Trust was substantial. The judgment with interest totaled approximately $11,000,000.00.

The plaintiff presented evidence on four distinct factual issues each involving significant evidentiary challenges, the use of substantial legal time and the need for assistance by expert witnesses.3 The plaintiff was required to recreate much of the history of the NDRTrust because the trustees had destroyed records of the trust.

The case also involved complex legal issues that required substantial research and analysis. This case was atypical, in that, in addition to proving how much money the trustees, had misappropriated from the trust assets, this case also required proof by the plaintiff that NDRTrust property was encumbered by mortgages for the benefit ofTsourides’ personal business. This necessitated proof by the plaintiff of the amount of profits the trustee or her affiliates produced during the relevant period as well as a determination of that portion of the profits attributable to misuse of the trust assets.

The plaintiff was able to prove at trial that the trust law principles forbade the trustees from using the trust assets in the manner they were used by the defendants. The case was tried by highly competent attorneys on both sides. Their ability to analyze and present the complex evidence in a succinct and understandable fashion to the court was remarkable. I find that the hourly billing rates as presented in the attachments to the application are appropriate and reasonable considering the experience and competency of the attorneys handling this matter.4

Kotin, Crabtree and Strong LLP Attorney Fees:

The plaintiff is requesting an award of attorney fees and expenses for the services of Kotin, Crabtree and Strong LLP (Kotin) in the amount of $96,205.85. I accept the defendants’ argument that the finance charges included in this figure are not appropriate and exclude finance charges in the amount of $2,449.72. This court accepts the balance of the fees and costs as reasonable and necessary and I award [285]*285the fees and costs from Kotin in the amount of $93,756.13.

Davis, Malm and D’Agostine Attorney Fees:

The plaintiff is requesting attorney fees and expenses for the services of Davis, Malm and D’Agostine (Davis) in the amount of $461,221.68. Based on the affidavit submitted by the plaintiffs lead counsel, Gaiy S. Matsko, I find that the hourly rates billed by Davis are reasonable.

The defendants object to the duplicative nature of the charges by Davis and argue that they should not be responsible for the costs attributable to the effort by successor counsel to absorb the work performed by former counsel. Toward this end the court scrutinized the billings of Kotin and Davis with an eye to deduct for unnecessary duplication. Other than the two exceptions noted below, I do not find that further deductions from the Davis charges are required. The highly complex nature of the legal and factual issues justified the billed hours by Davis.

I accept the defendants’ argument that the time devoted to inventorying and reviewing of the Kotin file should not be a cost borne by the defendants. The work, while necessary, was caused because the plaintiff chose to change counsel.5 Additionally the review of Alice Tsourides’ deposition by Davis lawyers while duplicative of services previously billed by Kotin was also performed by four individuals at Davis over approximately 2 1/2 years. While the court is mindful of the practical reality in such review, I find it unnecessary duplication and will exclude the amount billed for this service by Davis.6 As such, the court will exclude $16,463.75 from Davis’ requested fees and award to the plaintiff the balance of the requested amount as reasonable and necessary fees and costs for Davis in the amount of $444,757.93.

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Related

Heller v. Silverbranch Construction Corp.
382 N.E.2d 1065 (Massachusetts Supreme Judicial Court, 1978)
Fontaine v. Ebtec Corp.
613 N.E.2d 881 (Massachusetts Supreme Judicial Court, 1993)
Linthicum v. Archambault
398 N.E.2d 482 (Massachusetts Supreme Judicial Court, 1979)
Knapp Shoes, Inc. v. Sylvania Shoe Manufacturing Corp.
640 N.E.2d 1101 (Massachusetts Supreme Judicial Court, 1994)
Davis v. Bay State League
33 N.E. 591 (Massachusetts Supreme Judicial Court, 1893)
Shaw v. Harding
28 N.E.2d 469 (Massachusetts Supreme Judicial Court, 1940)
Society of Jesus of New England v. Boston Landmarks Commission
411 Mass. 754 (Massachusetts Supreme Judicial Court, 1992)
Berman v. Linnane
434 Mass. 301 (Massachusetts Supreme Judicial Court, 2001)
T & D Video, Inc. v. City of Revere
450 Mass. 107 (Massachusetts Supreme Judicial Court, 2007)
Siegel v. Berkshire Life Insurance
835 N.E.2d 288 (Massachusetts Appeals Court, 2005)
T & D Video, Inc. v. City of Revere
848 N.E.2d 1221 (Massachusetts Appeals Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
26 Mass. L. Rptr. 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pantazis-v-tsourides-masssuperct-2009.