Fabre v. Walton
| Citation | 441 Mass. 9,802 NE 2d 1030 |
| Parties | SEAN FABRE v. AMALIA WALTON. |
| Decision Date | 09 February 2004 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.
John P. Fulginiti (Ann Wagner with him) for the defendant.
Bruce T. Macdonald for the plaintiff.
Sean Fabre appeals from an order of a single justice of this court requiring Fabre to pay Amalia Walton $56,510 in appellate attorney's fees and costs. The single justice's order followed the full court's determination that Walton was entitled to fees and costs pursuant to G. L. c. 231, § 59H (anti-SLAPP statute). See Fabre v. Walton, 436 Mass. 517, 525 (2002) ().
On appeal, Fabre does not challenge the amount of the appellate attorney's fees and costs the single justice required him to pay. Rather, he challenges Walton's entitlement to such fees and costs. That issue, however, already was determined by the full court when it denied Fabre's petition for rehearing, which raised (for the first time) the same issues he presses here. Edgar v. Edgar, 406 Mass. 628, 630 (1990) ().
Walton requests that we award her additional attorney's fees and costs related to this appeal. We allow her request. Because this appeal is an extension of the original appeal, an award of appellate attorney's fees and costs is appropriate here as well.
In cases where a party seeks an award of appellate fees, he or she must make that request in the brief. See Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989). We take this opportunity to announce a new procedure on the award of appellate attorney's fees and costs. The practice in this court until now has been for the court to refer the application for fees and any supporting legal arguments and documentation to a single justice (usually the author of the court's opinion) to determine the amount of the award, where appropriate. See id. This practice has often (as is the case here) led to another appeal — from the decision of the single justice to the full court — either disputing the amount of the award by the single justice or (in some instances, but again the case here) to reargue the question of entitlement to an award, even though the court has previously directed that, on application, an award be made. See, e.g., Stowe v. Bologna, 417 Mass. 199, 200 (1994); Edgar v. Edgar, supra. It is this portion of the process that we revise today.
In fee requests filed after the date of this opinion, the determination as to whether, and in what amount, appellate attorney's fees are to be awarded will no longer be a matter left solely to a single justice in the first instance....
To continue reading
Request your trial
-
H1 Lincoln, Inc. v. S. Wash. St., LLC
...an appropriate application for appellate fees and costs in this court, pursuant to the procedure established by Fabre v. Walton, 441 Mass. 9, 10-11, 802 N.E.2d 1030 (2004). ...
-
Com. v. Colleran
... ... ruling is "collateral" to merits of underlying action and "will interfere with rights in a way that cannot be remedied on appeal"); Fabre v. Walton, 436 Mass. 517, 521, 781 N.E.2d 780 (2002), S.C., 441 Mass. 9, 802 N.E.2d 1030 (2004), and cases cited ("immediate appeal of an ... ...
-
Costa v. Fall River Housing Authority
...connected to FRHA's appeal to this court, she may apply to the court in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11, 802 N.E.2d 1030 (2004). With respect to any request for attorney's fees and costs that Costa may have incurred opposing FRHA's direct appea......
-
Case of Alves
...connection with this appeal. The statute mandates that we grant the request. Pursuant to the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10, 802 N.E.2d 1030 (2004), counsel should file with the clerk of the Commonwealth a submission detailing and supporting the request for the stat......