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-604
TRAVERS/DOMBROSKI PC
vs.
KIMBERLEAH COLLINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, a law firm, brought this action for breach
of contract against the defendant, its former client, alleging
nonpayment of fees and costs in connection with the plaintiff's
representation of the defendant in a Probate and Family Court
case. After a jury-waived trial in Superior Court, the judge
awarded the plaintiff $34,555 in damages, plus interest, costs,
and fees.1 The defendant appeals arguing that: the bill for
legal services was grossly excessive; the judge's factual
findings erroneously relied on the testimony of the plaintiff's
sole witness; the plaintiff breached the contract, excusing her
1The court also ruled that the defendant failed to establish her counterclaim for unfair or deceptive conduct in violation of G. L. c. 93A. from performance; and the ruling was tainted by the judge's
improper bias. We affirm the judgment.
Discussion. 1. Grossly excessive fees. Neither party
disputes the valid formation of the contract for legal services.
Notwithstanding, the defendant maintains that the hourly fee
charged by her principal lawyer, Attorney Dombroski, was
excessive, in part because the bill, in hindsight, was costlier
than the benefit the firm was able to secure in her child
support case. She also argues that the firm performed
unnecessary work and did not prove that it performed the work it
claimed.
The contract provided for an hourly rate of $325 for
Dombroski's work. "[C]ontracts are to be construed 'according
to the fair and reasonable meaning of the words in which the
agreement of the parties is expressed.'" Cody v. Connecticut
Gen. Life Ins. Co., 387 Mass. 142, 146 (1982), quoting MacArthur
v. Massachusetts Hosp. Serv., Inc., 343 Mass. 670, 672 (1962).
See also Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass.
App. Ct. 726, 729 (1999) ("Contracts that are free from
ambiguity must be interpreted according to their plain terms").
The defendant agreed to pay that rate, and while litigation can
be expensive, nothing in the record demonstrates that
Dombroski's hourly rate was unconscionable given his experience
and qualifications. See G. L. c. 106, § 2-302. Consequently,
2 the judge did not err in reading the contract as written and
requiring the defendant to meet her end of the bargain. See
Waters v. Min Ltd., 412 Mass. 64, 67 n.3 (1992).
As to the defendant's claim that the firm billed her for
unnecessary work, the judge's finding that the plaintiff did not
overbill, but rather performed the work at the client's demand,
is well supported by the evidence presented at trial. See Judge
Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of
Developmental Servs., 492 Mass. 772, 799 (2023) (factual finding
is not clearly erroneous when supported by record).
At trial, the defendant attempted to show that the firm did
not perform the work detailed on the billing sheets documenting
labor contributed to her case. But the judge found that the
plaintiff did in fact perform the work as charged,2 and,
moreover, secured favorable results for the defendant. The
judge also found that the defendant had knowledge of the fees
the firm was generating as the litigation progressed. These
findings accurately reflect the proof at trial and so are not
clearly erroneous. See Demoulas v. Demoulas Super Mkts., Inc.,
424 Mass. 501, 509 (1997), quoting Building Inspector of
Lancaster v. Sanderson, 372 Mass. 157, 160 (1977) ("A finding is
2 To the extent minor discrepancies in the charges might have existed, the judge found that the defendant failed to raise them in the manner provided for in the contract.
3 'clearly erroneous' only when, 'although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed'").
2. Dombroski's testimony. The defendant stresses that the
judge improperly allowed Dombroski to testify about the work he
performed under the contract and ignored the clear terms of the
contract itself. The defendant further asserts that Dombroski's
testimony was improper because it was hearsay.
It is true that "an unambiguous agreement must be enforced
according to its terms." Schwanbeck v. Federal-Mogul Corp., 412
Mass. 703, 706 (1992), citing Freelander v. G. & K. Realty
Corp., 357 Mass. 512, 516 (1970). Here, the contract
unambiguously called for the defendant to pay an hourly rate,
but the question remained whether Dombroski had performed the
work he billed out; consequently, his testimony about how he
litigated the case was relevant to ascertaining if the plaintiff
complied with the contract's unambiguous terms. See Mass. G.
Evid. §§ 401-402 (2024).
Dombroski's testimony based on his personal knowledge and
recollection was properly admitted as statements of a percipient
witness. See Mass. G. Evid. § 602 (2024). To the extent he
4 testified about statements the defendant made to him,3 those
statements were admissible as the statements of an opposing
party and were not hearsay. See Mass. G. Evid. § 801(d)(2)(A)
(2024). Embedded in the defendant's opposition to the judge's
reliance on Dombroski's testimony is the notion that it was
unfair for the judge to credit his version of events and decline
to accept the defendant's view of what took place. It is a
judge's responsibility to hear conflicting evidence and
determine which narrative is true. See E.K. v. S.C., 97 Mass.
App. Ct. 403, 409 (2020), quoting Altomare v. Altomare, 77 Mass.
App. Ct. 601, 602 (2010) ("A trial judge's findings of fact will
not be set aside unless clearly erroneous"). Making credibility
determinations is part and parcel of that responsibility. See
Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012),
quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995)
("In a bench trial credibility is 'quintessentially the domain
of the trial judge [so that her] assessment is close to immune
from reversal on appeal except on the most compelling of
showings'").
3. Mutual breaches. The defendant argued at trial, and
argues again here, that her nonpayment should be excused because
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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
23-P-604
TRAVERS/DOMBROSKI PC
vs.
KIMBERLEAH COLLINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, a law firm, brought this action for breach
of contract against the defendant, its former client, alleging
nonpayment of fees and costs in connection with the plaintiff's
representation of the defendant in a Probate and Family Court
case. After a jury-waived trial in Superior Court, the judge
awarded the plaintiff $34,555 in damages, plus interest, costs,
and fees.1 The defendant appeals arguing that: the bill for
legal services was grossly excessive; the judge's factual
findings erroneously relied on the testimony of the plaintiff's
sole witness; the plaintiff breached the contract, excusing her
1The court also ruled that the defendant failed to establish her counterclaim for unfair or deceptive conduct in violation of G. L. c. 93A. from performance; and the ruling was tainted by the judge's
improper bias. We affirm the judgment.
Discussion. 1. Grossly excessive fees. Neither party
disputes the valid formation of the contract for legal services.
Notwithstanding, the defendant maintains that the hourly fee
charged by her principal lawyer, Attorney Dombroski, was
excessive, in part because the bill, in hindsight, was costlier
than the benefit the firm was able to secure in her child
support case. She also argues that the firm performed
unnecessary work and did not prove that it performed the work it
claimed.
The contract provided for an hourly rate of $325 for
Dombroski's work. "[C]ontracts are to be construed 'according
to the fair and reasonable meaning of the words in which the
agreement of the parties is expressed.'" Cody v. Connecticut
Gen. Life Ins. Co., 387 Mass. 142, 146 (1982), quoting MacArthur
v. Massachusetts Hosp. Serv., Inc., 343 Mass. 670, 672 (1962).
See also Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass.
App. Ct. 726, 729 (1999) ("Contracts that are free from
ambiguity must be interpreted according to their plain terms").
The defendant agreed to pay that rate, and while litigation can
be expensive, nothing in the record demonstrates that
Dombroski's hourly rate was unconscionable given his experience
and qualifications. See G. L. c. 106, § 2-302. Consequently,
2 the judge did not err in reading the contract as written and
requiring the defendant to meet her end of the bargain. See
Waters v. Min Ltd., 412 Mass. 64, 67 n.3 (1992).
As to the defendant's claim that the firm billed her for
unnecessary work, the judge's finding that the plaintiff did not
overbill, but rather performed the work at the client's demand,
is well supported by the evidence presented at trial. See Judge
Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of
Developmental Servs., 492 Mass. 772, 799 (2023) (factual finding
is not clearly erroneous when supported by record).
At trial, the defendant attempted to show that the firm did
not perform the work detailed on the billing sheets documenting
labor contributed to her case. But the judge found that the
plaintiff did in fact perform the work as charged,2 and,
moreover, secured favorable results for the defendant. The
judge also found that the defendant had knowledge of the fees
the firm was generating as the litigation progressed. These
findings accurately reflect the proof at trial and so are not
clearly erroneous. See Demoulas v. Demoulas Super Mkts., Inc.,
424 Mass. 501, 509 (1997), quoting Building Inspector of
Lancaster v. Sanderson, 372 Mass. 157, 160 (1977) ("A finding is
2 To the extent minor discrepancies in the charges might have existed, the judge found that the defendant failed to raise them in the manner provided for in the contract.
3 'clearly erroneous' only when, 'although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed'").
2. Dombroski's testimony. The defendant stresses that the
judge improperly allowed Dombroski to testify about the work he
performed under the contract and ignored the clear terms of the
contract itself. The defendant further asserts that Dombroski's
testimony was improper because it was hearsay.
It is true that "an unambiguous agreement must be enforced
according to its terms." Schwanbeck v. Federal-Mogul Corp., 412
Mass. 703, 706 (1992), citing Freelander v. G. & K. Realty
Corp., 357 Mass. 512, 516 (1970). Here, the contract
unambiguously called for the defendant to pay an hourly rate,
but the question remained whether Dombroski had performed the
work he billed out; consequently, his testimony about how he
litigated the case was relevant to ascertaining if the plaintiff
complied with the contract's unambiguous terms. See Mass. G.
Evid. §§ 401-402 (2024).
Dombroski's testimony based on his personal knowledge and
recollection was properly admitted as statements of a percipient
witness. See Mass. G. Evid. § 602 (2024). To the extent he
4 testified about statements the defendant made to him,3 those
statements were admissible as the statements of an opposing
party and were not hearsay. See Mass. G. Evid. § 801(d)(2)(A)
(2024). Embedded in the defendant's opposition to the judge's
reliance on Dombroski's testimony is the notion that it was
unfair for the judge to credit his version of events and decline
to accept the defendant's view of what took place. It is a
judge's responsibility to hear conflicting evidence and
determine which narrative is true. See E.K. v. S.C., 97 Mass.
App. Ct. 403, 409 (2020), quoting Altomare v. Altomare, 77 Mass.
App. Ct. 601, 602 (2010) ("A trial judge's findings of fact will
not be set aside unless clearly erroneous"). Making credibility
determinations is part and parcel of that responsibility. See
Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012),
quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995)
("In a bench trial credibility is 'quintessentially the domain
of the trial judge [so that her] assessment is close to immune
from reversal on appeal except on the most compelling of
showings'").
3. Mutual breaches. The defendant argued at trial, and
argues again here, that her nonpayment should be excused because
3 The defendant agreed to waive attorney-client privilege, permitting Dombroski and the nondefendant witness to testify about conversations between them.
5 the plaintiff breached the contract by failing to supply monthly
statements as provided for in the contract. The judge found,
consistent with the record, that the plaintiff did provide bills
on April 11, June 5, July 24, and September 5 of 2016, but that
thereafter, the plaintiff agreed to withhold further bills until
the end of the case and did not forward another bill until
August 7, 2017.
The defendant correctly notes that the contract says
modifications to the contract need to be in writing. The judge
found that the term of the contract that required monthly
billing was not a material term of the contract, which is a
factual finding to which we accord substantial deference. See
EventMonitor, Inc. v. Leness, 473 Mass. 540, 546 (2016), citing
Cetrone v. Paul Livoli, Inc., 337 Mass. 607, 610 (1958). Since
the breach was not material, the defendant was not excused from
performance, and still had to pay for the work her lawyer
performed. See Lease-It, Inc. v. Massachusetts Port Auth., 33
Mass. App. Ct. 391, 397 (1992).
Additionally, even though the contract says that it cannot
be modified orally, the judge correctly found that the agreement
not to provide monthly statements was undertaken in
consideration of concessions regarding interest payments on the
bills, and so was a valid oral modification of the contract,
6 notwithstanding its terms. See Zlotnick v. McNamara, 301 Mass.
224, 225-226 (1938).
4. Judicial recusal for bias. The defendant argues that
the judge should have recused herself from the case because
Dombroski was endorsed in a campaign for political office by the
same Governor who appointed the judge. The defendant knew that
Dombroski was running for a State Senate seat at the time of
trial, and the information concerning the circumstances of the
judge's appointment was readily knowable and publicly available.
The argument could have been presented to the trial judge;
because it was not, it is forfeited. See Adoption of Iliana, 96
Mass. App. Ct. 397, 406 n.26 (2019) ("We generally do not
consider a claim of bias raised for the first time on appeal").4
Judgment affirmed.
By the Court (Massing, Singh & Grant, JJ.5),
Clerk
Entered: July 1, 2024.
4 The plaintiff's request for an award of appellate attorney's fees is allowed. The defendant shall have fourteen days after the date of this decision in which to file a response to the request and supporting documentation submitted by the plaintiff as an addendum to its brief. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
5 The panelists are listed in order of seniority.