Mulhern v. Roach

• Decision Date: 10 July 1985
• Citation: 20 Mass.App.Ct. 322,480 N.E.2d 308
• Parties: John F. MULHERN v. Martin J. ROACH.
• Court: Appeals Court of Massachusetts

Page 308

480 N.E.2d 308

20 Mass.App.Ct. 322

John F. MULHERN v. Martin J. ROACH.

Appeals Court of Massachusetts Middlesex.

Argued April 10, 1985.

Decided July 10, 1985.

Ferdinand C. Mauet, Boston (Pamela C. Slater, Brookline, with him), for defendant.

Harry L. Manion, III, Boston, for plaintiff.

Before BROWN, CUTTER and DREBEN, JJ.

CUTTER, Justice.

Mr. Mulhern in this action begun August 14, 1980, seeks to recover an attorney's fee and expenses for representing Roach in a proceeding to recover for two takings by eminent domain of land in Newton owned by Roach. In a trial without jury before a probate judge sitting by designation in the Superior Court, Mr. Mulhern was awarded a fee of $350,000, with interest from the date of the complaint. Roach's appeal is before us.

Two takings were made by the Newton Redevelopment Authority (NRA), one in May, 1969, and the other in December, 1970. ¹ The premises (the locus) were to be used in connection with commercial development projects to be assisted in part with Federal funds and in part with State money. The locus ² then was in a residential zone. NRA awarded Roach a pro tanto amount of $214,000, somewhat more than fifty-seven cents a square foot (see note 2). Actions to recover damages for the taking were then instituted and, after a considerable lapse of time, were tried for five days before a Superior Court judge in June, 1976, without a jury, under the then existing statute (which permitted both a nonjury and a jury trial). G.L. c. 79, § 22, as appearing in St.1973, c. 983, § 1. That judge assessed damages at $559,481, or about $1.50 a square foot. A seven-day jury trial followed in September, 1977. Damages were assessed then at $1,186,101, or about $3.20 a square foot.

The present plaintiff, Mr. Mulhern, ³ had entered the eminent domain cases in December, 1975, after Roach had been trying to settle the cases himself with a minimum use of lawyers. Virtually nothing had been done by attorneys in preparing the cases for trial, although Roach's son, Richard, had gathered substantial relevant data. There had been little (if any) discovery undertaken. In November of 1975, Roach appeared pro se before a Superior Court judge (Judge A) and sought a continuance. ⁴ The cases were continued until January, 1976, but were marked for no further continuance.

Mr. Mulhern had known Roach socially as a friend. In December, 1975, just prior to the time the cases were to be called for trial, Roach got in touch with Mr. Mulhern and retained him to deal with the cases, which then were not ready for trial. ⁵

In the present action by Mr. Mulhern to recover his fees, the trial judge made findings, which do not seem greatly to be disputed by Roach except with respect to (a) the arrangements in fact agreed between Roach and Mr. Mulhern about the charges by the latter for his services; (b) the complexity of the issues involved in the eminent domain cases, a matter which Roach viewed on a somewhat different basis than the trial judge, ⁶ and (c) the determination by the judge of the fair value of Mr. Mulhern's services, a matter discussed below in parts 1 and 2 of this opinion.

As to the first of these disputed matters, it is clear that the judge, on conflicting evidence, did not believe Roach's testimony that Mr. Mulhern had agreed to represent Roach for forty dollars an hour. On the contrary, the judge found that it was agreed that Roach and Mr. Mulhern "would work out the details and [Mr.] Mulhern's compensation at a later date." This finding was justified upon the conflicting evidence. The second matter, in view of our disposition of the case, is sufficiently dealt with in note 6, supra.

1. The standards to be applied. Roach's principal contention on this appeal

is that the trial judge did not apply the proper standards in determining the fair value of Mr. Mulhern's services. He argues especially (see part 2 of this opinion, infra ) that the judge in making his determination gave seriously inadequate attention to the amount of time reasonably expended by Mr. Mulhern.

(a) Mr. Mulhern is not entitled to recover on a contingent fee basis, for he concedes that he had no written contingent fee arrangement under Rule 3:05 of the Supreme Judicial Court, 382 Mass. 762-765 (1981); see also Rule 3:07, DR 2-106, id. at 772-773. An attorney, however, is not barred from recovering the fair value of his services because of the absence of a contingent fee agreement. See Young v. Southgate Dev. Corp., 379 Mass. 523, 525-526, 399 N.E.2d 27 (1980); Guenard v. Burke, 387 Mass. 802, 806, 443 N.E.2d 892 (1982). There thus is no question that the issue before the trial judge was the fair and reasonable value of Mr. Mulhern's services, taking into account all relevant circumstances.

(b) Because the award of fees is essentially on a quantum meruit basis, see Salem Realty Co. v. Matera, 10 Mass.App. 571, 575-576, 410 N.E.2d 716 (1980), aff'd, 384 Mass. 803, 426 N.E.2d 1160 (1981), the standard of valuation to be applied is much influenced by Cummings v. National Shawmut Bank, 284 Mass. 563, 569, 188 N.E. 489 (1933), quoted in the margin. ⁷ See also Muldoon v. West End Chevrolet, Inc., 338 Mass. 91, 95-97, 153 N.E.2d 887 (1958). In the Cummings case, attorneys had testified (id., 284 Mass. at 567-568, 188 N.E. 489) without objection to their opinions about the value of Mr. Cummings's services which had consumed only at most fifteen hours. The range of the opinions of value of the services lay between $6,500 and $8,500. A Superior Court judge had determined the services to be worth about $5,300 and that determination was sustained. ⁸

The Cummings case has been frequently cited. See, e.g., McLaughlin v. Old Colony Trust Co., 313 Mass. 329, 336, 47 N.E.2d 276 (1943), where the opinion noted that "there was no evidence that the services of the petitioners were in special demand greater than the demand for the services of other competent practitioners" and that much of the attorney's work was somewhat preliminary, with the consequence that the requested fee, see id. at 330, 337, 47 N.E.2d 276, was cut in half; McInerney v. Massasoit Greyhound Ass'n, 359 Mass. 339, 352, 269 N.E.2d 211 (1971), where the opinion said that the "Cummings case provides a great deal of well advised flexibility to attorneys in setting fees, but it does not give a total carte blanche," with the consequence that a fee deemed excessive was materially reduced; First Natl. Bank v. Brink, 372 Mass. 257, 261, 266-267, 361 N.E.2d 406 (1977); ⁹ Darmetko v. Boston Housing Authy., 378 Mass. 758, 764, 393 N.E.2d 395 (1979); Kane v. Kane, 13 Mass.App. 557, 560, 434 N.E.2d 1311 (1982), where, while acknowledging that "any award made will be entitled to considerable respect on review," it was said that "a calculation of attorney's fees requires an exercise of judgment involving the application of many factors."

The judge gave consideration to the Cummings case criteria (see note 7, supra ) in varying degrees. (1) He was justified in his findings that Mr. Mulhern "brought excellent and special skills" to the eminent domain cases. The testimony as an expert by Mr. Masterman (see note 3, supra ) warranted the conclusion that, by his professional adversaries in cases against the Boston Redevelopment Authority, Mr. Mulhern was regarded as highly competent. (2) There was little or no evidence of demand for Mr. Mulhern's services by other clients and, indeed, he had been in the Boston authority's full-time service for some years without any indication in the record that his services (either in particular cases or as a long-term associate) had been sought by private practitioners. Of course, Mr. Mulhern's full-time employment might be a discouragement to his private employment in eminent domain cases. (3) The amount involved (and the value of the property affected, see the Cummings criterion, numbered , note 7, supra ) were adequately taken into account by the judge. He gave, however, little consideration to the circumstance that the final result in the eminent domain claims was an award perhaps somewhat less than what would have been justified by some comparable sales in the neighborhood of the locus. (4) We discuss below (in part 2 of this opinion) what Roach contends was the inadequate consideration given by the trial judge to the time spent by Mr. Mulhern on the cases. (5) There was no evidence other than the testimony of Mr. Mulhern himself and of Mr. Masterman (see note 3, supra ), as to the charges made by lawyers in the community for similar services. Mr. Masterman testified that, in similar cases, the appropriate charge would "equal to no less than twenty-five percent to one-third of all sums recovered above the pro tanto [award] including interest," and where it involved (as in the present case) two trials, would amount to "[o]ne third of all sums recovered above the pro tanto including interest." ¹⁰ The results achieved were clearly satisfactory. Indeed, Mr. Masterman called the result "almost miraculous." ¹¹

2. Consideration of time reasonably expended and absence of any contingencies.

The judge appears to have given relatively little attention to the amount of time expended as a factor to be taken into account in fixing Mr. Mulhern's fee. He recognized that Mr. Mulhern kept no time records and (apart from listing various procedures in which Mr. Mulhern engaged) made as his most specific finding as to hours that Mr. Mulhern "did spend a great deal of time analyzing the" facts, documents, and the law and in cooperation with successor counsel. ¹² Mr. Mulhern did have a full-time job for the Boston Redevelopment Authority, and Mr. Mulhern agreed that, during his work for Mr. Roach, he took only two days' leave of absence from his regular work. He never has reconstructed in written form the hours expended on Roach's cases.

At no place in his "Findings and Order" does the judge give significant attention to the circumstance...