In re Estate of King

• Decision Date: 27 January 2010
• Docket Number: SJC-10404
• Parties: In the Matter of the ESTATE OF Bartley J. KING.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

920 N.E.2d 820

455 Mass. 796

In the Matter of the ESTATE OF Bartley J. KING.¹

SJC-10404

Supreme Judicial Court of Massachusetts, Norfolk.

Argued October 5, 2009.

Decided January 27, 2010.

Thomas F. Maffei, Boston (Douglas Tillberg with him) for Robert A. King & others.

Stephen G. Howard, Boston, for Lois Folan.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

An award of attorney's fees and costs under G.L. c. 215, § 45, by a judge in the Probate and Family Court is the focus of this appeal. In an earlier phase of this case, some of the children and grandchildren of the decedent, Bartley J. King (contestants) challenged the validity of the decedent's will, and separately challenged certain lifetime property transfers he made, on grounds of the decedent's mental incapacity and of undue influence. After nine days of trial before a judge (trial judge) in the Probate and Family Court (Probate Court), Lois Folan, who is a daughter of the decedent and the executor as well as the primary beneficiary of his estate, prevailed; the contestants have not appealed from that underlying judgment. A second Probate Court judge (motion judge) thereafter heard Folan's motion for attorney's fees and costs, and awarded Folan $510,321.50 in fees and $64,000 in costs, the award to run against the contestants, jointly and severally. This award is the subject of the appeal before us on our granting of the contestants' application for direct appellate review. We reject the contestants' argument that G.L. c. 215, § 45, does not authorize an award shifting attorney's fees and costs from one party to another party in the absence of evidence of bad faith or egregious litigation activities. However, we conclude that in the particular circumstances of this case, the motion judge erred in not providing the contestants with the opportunity to be heard on whether fees and costs should be awarded, and that there was error in the method used by the judge to calculate the award of fees and costs.

1. Background. a. The underlying will contest. On July 5, 2004, the decedent died. He was survived by his son, Robert King; two daughters, Folan and Helen Joyce Cushman; and fifteen grandchildren. The decedent had executed a will on August 25, 2000, naming Folan as the primary beneficiary and executor; his earlier will had been executed in 1990.² On February 10, 2005 Folan filed in the Probate Court a petition for probate of the decedent's will and the appointment of an executor. A number of family members filed objections to the petition, including Robert King, Cushman, and nine of his grandchildren. In addition to this probate matter, Robert King, Cushman, and a number of the grandchildren filed a complaint in equity, seeking declaratory judgments that various estate planning documents created by the decedent were invalid. The two cases were consolidated.³ At issue in both cases was whether the decedent had the requisite testamentary capacity to execute a new will and changes to his estate plan on August 25, 2000, and the various life insurance change of beneficiary forms on June 17, July 5, and December 15 of the same year. Also at issue, based on separate allegations by Cushman, was whether Folan had exerted undue influence over the decedent.

Both sides filed numerous pretrial motions, including motions relating to discovery, a motion or motions for preliminary injunction by the contestants, successive motions by Folan to strike the contestants' affidavits of objections, Folan's later motion for summary judgment, and numerous motions to reconsider. Close to the trial date, Folan also filed a motion for a "Daubert-Lanigan"⁴ hearing concerning whether the testimony of the contestants' medical expert witness would be admissible. The trial judge allowed some of Folan's motions to strike affidavits of objections, denied others, and denied most of Folan's other pretrial motions, including Folan's motion for summary judgment and the Daubert-Lanigan motion.

Trial commenced on January 3, 2007. On that day, Cushman moved for voluntary dismissal of her objections and for leave to withdraw. The trial judge granted the motion, but indicated that Cushman might nonetheless be held liable for a portion of any award of attorney's fees that might be entered in the case at its conclusion. The remaining contestants proceeded to trial on both the lack of testamentary capacity and undue influence claims. The trial lasted nine days. Sixteen witnesses and eighty exhibits were presented.

The trial judge ultimately found no credible evidence that the decedent lacked capacity on the dates he had respectively signed his will and signed the forms changing the designation of beneficiary on three different life insurance policies. Rather, the evidence offered by the contestants only supported the conclusion that the decedent was, as a result of his wife's death, temporarily depressed and suffering associated temporary psychological symptoms. The judge further found that the contestants offered no evidence at trial to support the undue influence claim beyond mere opportunity on the part of Folan to exercise undue influence—an opportunity that, the judge determined, Folan had not used. On July 12, 2007, judgments entered in the two cases, allowing the petition to probate the decedent's will dated August 25, 2000; appointing Folan as executor; dismissing, with prejudice, each of the claims in the equity complaint; and granting leave to Folan to file a motion seeking attorney's fees and costs.⁵

b. Motion for fees and costs. Folan filed such a motion, seeking an award of fees and costs under both G.L. c. 231, § 6F, and G.L. c. 215, § 45, in the amount of $710,321.50 in attorney's fees and $95,868.47 in costs, for a total of $806,189.97, or roughly sixty-seven per cent of the $1.2 million value of the decedent's estate.⁶ Folan sought these fees and costs because, she argued, the contestants had engaged in a "two and a half year campaign to punish ... Folan for her father's generosity," and should be ordered "to bear the financial burden that they willfully imposed on ... Folan by persisting in their unsubstantiated and baseless claims."

The trial judge found it necessary to assign to another judge the matter of Folan's application for fees.⁷ Folan subsequently filed a motion for reconsideration that sought to have the trial judge herself hear the issues. In her order denying that motion, the trial judge stated that the only remaining issue for determination was "the amount of reasonable attorney's fees in this case. The issue whether attorney's fees should be awarded was resolved by judgment and decree after trial." Cushman moved to strike the quoted portion of this order, arguing that the trial judge had not included any findings or legal rulings regarding an award of fees in her trial decision. In response, the trial judge struck the language, ruling that the objectors "should have the opportunity to be heard on the issue of whether or not counsel fees should be awarded." She went on to note, however, that the judge who would hear the motion (motion judge) could, in that judge's discretion, limit the parties' testimony on the issue whether an award should be made. The trial judge further observed that "[e]xtensive findings of fact were entered upon which the [motion] judge may rely in determining the appropriateness and amount of an award...."

The motion judge heard the motion over two days. On the first day, she denied the contestants' motion to bifurcate the hearing and separately consider (1) the issue whether fees should be awarded and (2) the reasonableness of the amount of fees incurred, stating:

"The Court is officially familiar with the file and has reviewed the docket as well as certain pleadings, specifically including the [trial judge's] sixty-nine-page findings of fact, rulings of law, rationale and procedural history.... I view this hearing as for the purposes of determining, not whether attorney's fees will be issued under the circumstances, but what attorney's fees are reasonable. I am ruling now, if it isn't implicit in anything before, that [Folan] is entitled to attorney's fees " (emphasis added).

In line with this ruling, the motion judge thereafter considered only the reasonableness of the fees. During the two days of hearings, Stephen Howard, Folan's lead trial attorney, and Brian Bixby, the contestants' expert witness, testified, and seventeen exhibits were introduced, including billing invoices detailing the work of Howard and other attorneys and paralegals from his firm who had worked on the case. In her decision on the motion, the motion judge rejected Folan's claim that fees and costs should be awarded under G.L. c. 231, § 6F,⁸ finding that the contestants had acted initially in good faith and had not raised wholly insubstantial or frivolous claims. However, the motion judge concluded that "justice and equity" did "require" an award of fees under G.L. c. 215, § 45.⁹ She found that the contestants had "unreasonably extended litigation" and that, notwithstanding the fact that they had initially acted in good faith, "[a]fter two years of discovery, [they] should have realized that their claims were no longer reasonable" and would "not be supported by the evidence long before trial." She also found that Folan, "pursuant to her fiduciary duty imposed by her role as executor, acted properly in defending the estate of [the decedent] from the seven contestants." The motion judge awarded Folan $510,321.50 in fees and $64,000 in costs, almost one-half the value of the decedent's estate.¹⁰

2. Discussion. a. Are awards of attorney's fees and costs under G.L. c. 215, § 45, limited to cases involving bad faith or wrongful litigation conduct? The contestants' first argument is that the motion judge's award of fees pursuant to G.L. c. 215, § 45 (§ 45; see note 9, supra), was improper because the statute only...