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
25-P-772
SUBURBAN ELECTRIC CONTRACTING, INC.
vs.
SEFER OZDEMIR.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the jury found the defendant, Sefer
Ozdemir (Ozdemir), liable to the plaintiff, Suburban Electric
Contracting, Inc. (Suburban), on a breach of contract claim.
Both parties cross-appealed from the judgment to the Appellate
Division. A panel of the Appellate Division remanded the case
for modification of interest and consideration of attorney's
fees for Suburban and, thereafter, the trial court entered an
amended judgment on April 15, 2021. Litigation continued, the
details of which are not here pertinent, and, on December 21,
2022, Ozdemir's counsel attempted to tender payment to
Suburban's counsel. Suburban's counsel rejected the payment,
1 Individually and as trustee of Golden Horn Realty Trust. arguing that the amount did not include the additional
postjudgment attorney's fees and costs that had accrued and were
warranted under the contract underlying the judgment. In
December 2023, the trial court entered a new judgment, awarding
additional postjudgment attorney's fees and costs to Suburban.
Ozdemir then appealed to the Appellate Division. The Appellate
Division affirmed the trial court's December 2023 judgment, and
Ozdemir now appeals from the Appellate Division's decision and
order. We affirm.
1. Award of postjudgment attorney's fees for Suburban.
Ozdemir first claims that the Appellate Division abused its
discretion in affirming the trial court's award of postjudgment
attorney's fees and costs to Suburban. We disagree.
We review the award of attorney's fees for abuse of
discretion, and we reverse an award only if it is clearly
erroneous. WHTR Real Estate Ltd. Partnership v. Venture
Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005). Courts
generally allow for attorney's fees between opposing parties in
litigation when the parties contract for such fees. See Hannon
v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 827
(1982). Here, the parties contracted for postjudgment
2 attorney's fees, and therefore the judge was within her
discretion to award such fees.2
Ozdemir first argues that the award was an abuse of
discretion because Suburban did not seek the fees within the
proper time allowed under motions filed pursuant to Mass.
R. Civ. P. 59 (e), 365 Mass. 827 (1974). This argument is
waived as it was not raised before the Appellate Division.3 See
Boss v. Leverett, 484 Mass. 553, 562-563 (2020). Furthermore,
Ozdemir admits that Suburban's motion for such fees was not
brought as a rule 59 (e) motion and, in fact, he does not cite
to any legal authority to support his assertion that a
postjudgment motion for attorney's fees must be brought as a
rule 59 (e) motion. Likewise, Ozdemir's argument that Suburban
2 We are constrained in our review of this case because the full contract is not in the record before us. See Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019). Ozdemir does not dispute the Appellate Division's interpretation of the contract allowing for postjudgment attorney's fees.
3 While Ozdemir's counsel alleged that the rule 59 (e) argument was raised to the Appellate Division below, we do not have Ozdemir's memorandum to the Appellate Division in the record before us. See Mass. R. A. P. 8 (a). Further, the transcript of the Appellate Division hearing and the Appellate Division's subsequent decision omit any mention of a rule 59 (e) argument. Therefore, we treat it as waived.
3 engaged in excessive delay before moving for the fees is also
waived.4 See Boss, 484 Mass. at 562-563.
Ozdemir's next argument, that the merger doctrine bars the
award, is also without merit. Ozdemir contends that there is no
legal basis for awarding Suburban postjudgment attorney's fees
and costs because the contract merged into the judgment and
ceased to confer any rights upon Suburban after the fact.
Ozdemir cites no legal authority for the proposition that
postjudgment attorney's fees, when such fees are interpreted as
included in the contract underlying the judgment, merged with
the judgment. The cases he does cite are inapposite. See
Dwight v. Dwight, 371 Mass. 424, 427 (1976) (stating that merger
applies to bar trust beneficiary from litigating second action
on same claim even if presenting new theories); Handrahan v.
Cheshire Iron Works, 86 Mass. 396, 397 (1862) (affirming general
principle that judgment obtained on debt merges contract from
which debt arose). Seeking postjudgment attorney's fees is not
a separate action here but rather is a continued attempt to
enforce the underlying contract which provided for such fees.
2. Calculation of postjudgment attorney's fees and costs.
Ozdemir also claims that if the award of postjudgment attorney's
4 See note 3, supra. The Appellate Division hearing transcript and the Appellate Division's decision omit any mention of an excessive delay argument.
4 fees to Suburban was proper, then the calculation of such fees
was still an abuse of discretion. We disagree.
"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). One method of
calculating such fees is the "lodestar" approach. Id. at 303.
Under this approach, the court first multiplies hours reasonably
spent by a reasonable hourly rate and then may adjust upward or
downward based on several factors, including difficulty of the
case, awards in similar cases, the attorney's skill, and more.
See Stratos v. Department. of Pub. Welfare, 387 Mass. 312, 321-
322 (1982). Importantly, the judge is in the best position to
determine how much time was reasonably spent on a case and the
fair value of the attorney's services. Fontaine v. Ebtec Corp.,
415 Mass. 309, 324 (1993).
In its December 15, 2023 judgment, the trial judge awarded
Suburban $11,734.20 in postjudgment attorney's fees and costs.
To reach this amount, the trial judge calculated a lodestar
figure, as she accepted Suburban counsel's hourly rate of $395
as reasonable, and multiplied it by the number of hours
reasonably spent between April 2021 and June 2023, making
adjustments for amounts of time that the court found to be
unreasonable. Invoices submitted by Suburban, dated between
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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
25-P-772
SUBURBAN ELECTRIC CONTRACTING, INC.
vs.
SEFER OZDEMIR.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the jury found the defendant, Sefer
Ozdemir (Ozdemir), liable to the plaintiff, Suburban Electric
Contracting, Inc. (Suburban), on a breach of contract claim.
Both parties cross-appealed from the judgment to the Appellate
Division. A panel of the Appellate Division remanded the case
for modification of interest and consideration of attorney's
fees for Suburban and, thereafter, the trial court entered an
amended judgment on April 15, 2021. Litigation continued, the
details of which are not here pertinent, and, on December 21,
2022, Ozdemir's counsel attempted to tender payment to
Suburban's counsel. Suburban's counsel rejected the payment,
1 Individually and as trustee of Golden Horn Realty Trust. arguing that the amount did not include the additional
postjudgment attorney's fees and costs that had accrued and were
warranted under the contract underlying the judgment. In
December 2023, the trial court entered a new judgment, awarding
additional postjudgment attorney's fees and costs to Suburban.
Ozdemir then appealed to the Appellate Division. The Appellate
Division affirmed the trial court's December 2023 judgment, and
Ozdemir now appeals from the Appellate Division's decision and
order. We affirm.
1. Award of postjudgment attorney's fees for Suburban.
Ozdemir first claims that the Appellate Division abused its
discretion in affirming the trial court's award of postjudgment
attorney's fees and costs to Suburban. We disagree.
We review the award of attorney's fees for abuse of
discretion, and we reverse an award only if it is clearly
erroneous. WHTR Real Estate Ltd. Partnership v. Venture
Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005). Courts
generally allow for attorney's fees between opposing parties in
litigation when the parties contract for such fees. See Hannon
v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 827
(1982). Here, the parties contracted for postjudgment
2 attorney's fees, and therefore the judge was within her
discretion to award such fees.2
Ozdemir first argues that the award was an abuse of
discretion because Suburban did not seek the fees within the
proper time allowed under motions filed pursuant to Mass.
R. Civ. P. 59 (e), 365 Mass. 827 (1974). This argument is
waived as it was not raised before the Appellate Division.3 See
Boss v. Leverett, 484 Mass. 553, 562-563 (2020). Furthermore,
Ozdemir admits that Suburban's motion for such fees was not
brought as a rule 59 (e) motion and, in fact, he does not cite
to any legal authority to support his assertion that a
postjudgment motion for attorney's fees must be brought as a
rule 59 (e) motion. Likewise, Ozdemir's argument that Suburban
2 We are constrained in our review of this case because the full contract is not in the record before us. See Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019). Ozdemir does not dispute the Appellate Division's interpretation of the contract allowing for postjudgment attorney's fees.
3 While Ozdemir's counsel alleged that the rule 59 (e) argument was raised to the Appellate Division below, we do not have Ozdemir's memorandum to the Appellate Division in the record before us. See Mass. R. A. P. 8 (a). Further, the transcript of the Appellate Division hearing and the Appellate Division's subsequent decision omit any mention of a rule 59 (e) argument. Therefore, we treat it as waived.
3 engaged in excessive delay before moving for the fees is also
waived.4 See Boss, 484 Mass. at 562-563.
Ozdemir's next argument, that the merger doctrine bars the
award, is also without merit. Ozdemir contends that there is no
legal basis for awarding Suburban postjudgment attorney's fees
and costs because the contract merged into the judgment and
ceased to confer any rights upon Suburban after the fact.
Ozdemir cites no legal authority for the proposition that
postjudgment attorney's fees, when such fees are interpreted as
included in the contract underlying the judgment, merged with
the judgment. The cases he does cite are inapposite. See
Dwight v. Dwight, 371 Mass. 424, 427 (1976) (stating that merger
applies to bar trust beneficiary from litigating second action
on same claim even if presenting new theories); Handrahan v.
Cheshire Iron Works, 86 Mass. 396, 397 (1862) (affirming general
principle that judgment obtained on debt merges contract from
which debt arose). Seeking postjudgment attorney's fees is not
a separate action here but rather is a continued attempt to
enforce the underlying contract which provided for such fees.
2. Calculation of postjudgment attorney's fees and costs.
Ozdemir also claims that if the award of postjudgment attorney's
4 See note 3, supra. The Appellate Division hearing transcript and the Appellate Division's decision omit any mention of an excessive delay argument.
4 fees to Suburban was proper, then the calculation of such fees
was still an abuse of discretion. We disagree.
"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). One method of
calculating such fees is the "lodestar" approach. Id. at 303.
Under this approach, the court first multiplies hours reasonably
spent by a reasonable hourly rate and then may adjust upward or
downward based on several factors, including difficulty of the
case, awards in similar cases, the attorney's skill, and more.
See Stratos v. Department. of Pub. Welfare, 387 Mass. 312, 321-
322 (1982). Importantly, the judge is in the best position to
determine how much time was reasonably spent on a case and the
fair value of the attorney's services. Fontaine v. Ebtec Corp.,
415 Mass. 309, 324 (1993).
In its December 15, 2023 judgment, the trial judge awarded
Suburban $11,734.20 in postjudgment attorney's fees and costs.
To reach this amount, the trial judge calculated a lodestar
figure, as she accepted Suburban counsel's hourly rate of $395
as reasonable, and multiplied it by the number of hours
reasonably spent between April 2021 and June 2023, making
adjustments for amounts of time that the court found to be
unreasonable. Invoices submitted by Suburban, dated between
April 2021 and June 2023, support the trial judge's award.
5 Suburban's counsel also argued in the Appellate Division on
October 30, 2024, that the postjudgment attorney's fees that
were outstanding when Ozdemir first attempted tender of payment
were "well over [$]10,000." While an itemized breakdown of the
judge's analysis is not present in the record, a specific
"factor-by-factor analysis . . . is not required." Berman, 434
Mass. at 303. Furthermore, the judge opted to not grant
Suburban the total amount of fees requested. Given the evidence
in the record, we find no abuse of discretion in the calculation
of the postjudgment attorney's fees for Suburban.
Ozdemir claims that the amount awarded includes fees
purportedly incurred during the period that the trial judge
tolled further interest. However, Ozdemir fails to acknowledge
that the trial judge clarified that the order tolling further
interest applied to the underlying second judgment only, not to
any additional postjudgment attorney's fees and costs. No
additional interest was awarded by the trial judge in her final
judgment entered on December 15, 2023.
Ozdemir also argues that the calculation included fees
incurred in connection with proceedings in other courts or in
other actions. This argument is waived where Ozdemir raised it
neither in the trial court nor in the Appellate Division. See
Boss, 484 Mass. at 562-563. In addition, Ozdemir neither
6 identifies the billing entries or invoices in the record that he
contests, nor suggests by how much the award should be reduced.
3. Denial of postjudgment attorney's fees for Ozdemir.
Finally, Ozdemir claims that it was an abuse of discretion for
the Appellate Division to affirm the trial judge's denial of his
request for attorney's fees. We disagree.
We review an order denying requested fees for an abuse of
discretion. See Matter of the Estate of King, 455 Mass. 796,
805 (2010). Ozdemir has not established an abuse of discretion
as his argument for such fees pertains to Suburban refusing to
accept payment on December 21, 2022, and initially filing other
motions rather than the motion for postjudgment attorney's fees.
The judge was within her discretion to not award Ozdemir
attorney's fees, where Suburban did not, in fact, defy court
orders as Ozdemir alleges, and the judge, in fact, tolled
interest on the underlying judgment as a remedy for Suburban's
refusal to accept tender.
7 Conclusion. In summation, the decision and order of the
Appellate Division entered on April 14, 2025, is affirmed.
So ordered.5
By the Court (Meade, Hodgens & Allen, JJ.6),
Clerk
Entered: April 17, 2026.
5 Both parties' requests for appellate attorney's fees for litigating this appeal are denied.
6 The panelists are listed in order of seniority.