Regency Construction & Management v. Brait Builders Corp.

27 Mass. L. Rptr. 244
CourtMassachusetts Superior Court
DecidedJuly 20, 2010
DocketNo. 02CV2854F
StatusPublished

This text of 27 Mass. L. Rptr. 244 (Regency Construction & Management v. Brait Builders Corp.) 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
Regency Construction & Management v. Brait Builders Corp., 27 Mass. L. Rptr. 244 (Mass. Ct. App. 2010).

Opinion

Curran, Dennis J., J.

Regency Construction has prevailed on its allegations of a chapter 93A violation against Brait Builders and its claim under G.L.c. 149, section 29 against both Brait and XL Specialty Insurance Company. We now turn to Regency’s request for attorneys fees and costs under those statutes.

I. G.L.c. 93A, sections 2 and 9 Claim

G.L.c. 93A, section 9 permits the recovery of “. . . reasonable attorneys fees and costs.”

The basic measure of reasonable attorneys fees is the fair market rate for the time reasonably spent in preparing and litigating a case. Killeen v. West Bar Hotel Venture, LP, 69 Mass.App.Ct. 784, 790 (2007), citing Stowe v. Bologna, 417 Mass. 199, 203 (1994). In doing so, we consider the factors detailed in Lithicum v. Archambault, 379 Mass. 381, 388-89 (1979).

1. Reasonable Attorneys Fee Factors A. The Nature of the Case

Although this was, at its heart, a collection case, it required technical familiarity with the construction process and the analysis of the contents of dozens of boxes of discovery documents, which culminated in 135 trial exhibits. Moreover, Brait forced Regency to defend itself against counterclaims with a claimed value that exceeded $671,000.

B. The Time and Labor Required

I have reviewed the 74 pages of itemized billing records submitted by Regency’s attorney. With just three exceptions, they are reasonable in the scope of work and the time expended for the tasks performed. They are detailed, properly descriptive and complete. They demonstrate hard work in a multi-fronted litigation battle.

However, Regency’s fee request must be reduced in three particulars: 1) in-person conferences with the client consumed 32.7 hours, when a more appropriate figure would have been about 22.6 hours; 1 2) a billing entry of 4.0 hours on June 21, 2005 contains no description of the services provided; 2 and 3) Regency spent 7.9 hours in prosecuting its claim against the Town of Brookline (see Appendix “A” ), 3 a cause of action ultimately dismissed by summary judgment, and as such, not entitled to recompense. 4 Regency’s counsel says that a claim against the Town was necessary, in part, to obtain certain Town documents relating to the construction project, but a Rule 30(b)(6) deposition may have been just as effective.

With these three exceptions in mind, we turn to the question of whether we should honor billing records evidencing trial preparation for anticipated, but unrealized, trial dates. 5 Brait relies on Giuliano v. Piantowski, 20 Mass.L.Rptr. 17, 2005 WL 25221, for the proposition that the trial judge thought that it was “[in]appropriate” as part of a fee-shifting process to charge the losing party for multiple trial preparation. I disagree. First, there is no doubt that the time was truly expended here, the billing rate was eminently reasonable, and that trials require intense preparation, often demanding long and difficult work at night, on weekends and holidays. 6 Second, a trial attorney’s lot is not an easy one; a personal life evaporates—a reality not fully appreciated by observers. Third, this trial preparation was caused solely by Brait Builders’ intransigence in paying its honestly-incurred bills and its unfair and deceptive practices. Thus, it is hardly “appropriate” that the party whose conduct is sufficiently repugnant to qualify as a chapter 93A violation ought to escape the natural and logical consequences of such deception. Brait Builders leveraged its financial superiority to cheat many subcontractors out of their hard-earned monies; it erected roadblocks that took the form of over $671,000 in meritless counterclaims; and it could have put an end—at any time—to the need for requisite trial preparation. Instead, it [245]*245consciously and deliberately set upon a path to force Regency to prepare for trial on several occasions. Under the circumstances, permitting Brait to escape the full financial consequences of its strategic choice of unfair practices is not just misguided; it invites future predatory conduct in the construction trades.

C.The Hourly Rate

Regency’s counsel billed at an hourly rate of between $195 and $250, the former at the beginning of representation in 2002, and the latter five years later, in 2007. These rates are modest and reasonable.

D.Preclusion of Other Employment

This litigation was vigorously contested. There can be little doubt that Regency’s counsel was forced to forego other case work.

E.Customary Fee for the Locality

Although no documentation has been submitted as to a customary local legal fee, the issue has been addressed in another Superior Court decision. Frank v. Fowler, Middlesex Superior Court Docket No. 02-1216 (Burnes, J.) (February 23, 2007), in which a $525 hourly rate at WilmerHale was determined to be reasonable.7 By comparison, I find that the billing rate of Attorney Charles Rancourt of between $175 (in 2002) and $250 (in 2007) to be reasonable.

F.Amount Involved and Results Obtained

Although Regency’s attorneys fees would seem to be out of proportion to the results obtained in an “offensive” civil action, they were appropriate and necessary in defending against Brait’s many counterclaims. Regency achieved a complete victory in defending against these claims.

G.Time Limitations Imposed

Regency counsel’s billing records evidence significant time expended in sifting through dozens of boxes of documents; such work required the legal fee incurred.

H.Experience, Reputation and Ability of the Attorney

Attorney Charles G. Rancourt is the consummate, accomplished and thoroughly prepared trial attorney. With forty years’ experience, he is, in a phrase, a “trial lawyer’s trial lawyer.” His practice concentrates on, among other areas, construction litigation, insurance claims and chapter 93A claims. He has, by affidavit, litigated over 100 Superior Court and federal court cases.

I have had the opportunity to assess attorney Rancourt’s trial advocacy skills. They are excellent. Moreover, his work ethic is well apparent from the work product generated in Regency’s behalf. His trial conduct, patience and professionalism were outstanding. Regency was fortunate to be represented by such an outstanding member of the trial bar.

2. Expert Witness Fees and Other Costs

To make its case, Regency was forced to retain a witness expert in the accountancy business since it needed to cut through the obfuscation of Brait’s billing practices and chargeback schemes; thus, Regency’s expense of $21,300 in engaging a certified public accountant to review voluminous records and testify at trial is both reasonable and allowed.

II. The G.L.c. 149, section 29 Claim

G.L.c. 149, Section 29 states that:

A decree in favor of any claimant under this section shall include reasonable legal fees based on the time spent and the results accomplished as approved by the court. . . (Emphasis added)
The law is “. . .

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Related

Linthicum v. Archambault
398 N.E.2d 482 (Massachusetts Supreme Judicial Court, 1979)
Stowe v. Bologna
629 N.E.2d 304 (Massachusetts Supreme Judicial Court, 1994)
LaBonte v. White Construction Co.
292 N.E.2d 352 (Massachusetts Supreme Judicial Court, 1973)
Killeen v. Westban Hotel Venture, LP
872 N.E.2d 731 (Massachusetts Appeals Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
27 Mass. L. Rptr. 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/regency-construction-management-v-brait-builders-corp-masssuperct-2010.