Mulhern v. Roach

• Decision Date: 10 July 1986
• Citation: 398 Mass. 18,494 N.E.2d 1327
• Parties: John F. MULHERN v. Martin J. ROACH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1327

494 N.E.2d 1327

398 Mass. 18

John F. MULHERN v. Martin J. ROACH.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 6, 1986.

Decided July 10, 1986.

Harry L. Manion, III (Cynthia L. Hanley, Boston, with him), for plaintiff.

Ferdinand C. Mauet, Boston, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The plaintiff, John F. Mulhern, seeks to recover attorney's fees and expenses allegedly owed him by the defendant, Martin J. Roach, as a consequence of the plaintiff's successful representation of the defendant in two land damage actions against the Newton Redevelopment Authority (NRA). Those actions were tried twice in the Superior Court, first before a judge without a jury, and second before a jury. See G.L. c. 79, § 22, as appearing in St. 1973, c. 983, § 1. Damages assessed at the nonjury trial were $559,481. The jury trial resulted in damages for Roach in the amount of $1,186,101. The Appeals Court affirmed, Roach v. Newton Redevelopment Auth., 8 Mass. App. Ct. 618, 396 N.E.2d 170 (1979), as did this court. Roach v. Newton Redevelopment Auth., 381 Mass. 135, 407 N.E.2d 1251 (1980). The plaintiff wrote both appellate briefs, but did not argue the appeals. In August, 1980, the plaintiff commenced this action in the Superior Court seeking the award of reasonable attorney's fees. A judgment was entered for the plaintiff in the amount of $350,000 plus interest. ¹ Roach appealed, and the Appeals Court reversed, 20 Mass.App.Ct. 322 (1985), holding that the judge gave inadequate consideration to the fact that the fee was not to be set on a contingent basis and that the plaintiff had not established the time spent by him on the cases. The Appeals Court also held that the judge's exclusion of the NRA's counsel's testimony of their time charges in the eminent domain matters was reversible error. We granted the plaintiff's request for further appellate review, and we affirm the judgment of the Superior Court.

We summarize the judge's findings of fact. The plaintiff is an attorney who has been practicing law in Massachusetts since 1956. ² He has served as a commissioner of real property for the city of Boston and as general attorney for the Boston Housing Authority (BHA). The plaintiff possesses high standing in the Bar as an eminent domain attorney and is an expert in tax abatement cases in which the fair market value of real property is at issue. Although he had represented plaintiffs in only four eminent domain cases, he has "represented hundreds of defendants in similar cases ...."

The defendant owned land in Newton at the intersection of Route 128 and Washington Street which was zoned for residential use. He had acquired the land in three separate purchases in 1957, 1964, and 1965. In 1969, the NRA ³ took one part of the land for commercial use in conjunction with a State assisted funding plan. In 1970, the NRA took the remaining front portion of the defendant's land as part of a Federally funded program. The NRA awarded the defendant a pro tanto amount of $214,000. ⁴ From the time of the takings, until December, 1975, the defendant's strategy had been to try to settle the cases favorably himself, with little use of lawyers. ⁵ Petitions for assessment of damages were filed in the Superior Court in 1971 and 1972, ⁶ but very little else had been done to ready the cases for trial.

The plaintiff and the defendant had been friends for years and had many offhand discussions about the defendant's cases. On December 31, 1975, as the plaintiff was leaving a country club, the defendant informed him that his eminent domain cases were on for trial the following Monday, January 5, 1976, and asked the plaintiff to represent him at trial. The plaintiff agreed. The defendant stated that he had not yet retained an appraiser and the plaintiff replied that he would try to obtain a continuance. It was agreed that they would discuss the fee at a later date.

The plaintiff appeared in court on January 5, established that he had just been retained and had not yet secured appraisers, and made what he expected to be a routine motion for a continuance. He was confronted with the fact that the file had been marked "no further continuances" by a prior judge (first judge), and the attorneys for the NRA objected to the continuance. The plaintiff then discovered that when the cases had first been called for trial in November, 1975, the defendant had appeared pro se, having discharged the attorney representing him at that time. ⁷ The first judge had told the defendant to get an attorney and an appraiser, and had written him a letter to that effect. Only after the plaintiff agreed to file a stipulation on behalf of the defendant waiving a certain amount of interest and providing some compensation for the NRA's counsel, did the first judge reluctantly agree to grant the continuance. It was imperative that the plaintiff secure the continuance, as there was no appraiser to testify, virtually no trial preparation had been completed, and it was likely that if the cases were tried on January 5, judgment would only be for the pro tanto amount.

After receiving the necessary continuance, the plaintiff began to prepare for trial. He retained appraisers, worked with them and examined "in minute detail" the NRA's possible approach to the appraisal questions. Much of the trial preparation occurred at the defendant's son's home and entailed going through volumes of records and papers that the son kept in his cellar. Many of the documents with which the defendant provided the plaintiff were of little value. Although the plaintiff was assisted by the defendant, the defendant's son, and his granddaughter, the plaintiff was always in charge of and in control of the cases. The legal and factual analysis of the defendant's claims and of the NRA's defenses were the plaintiff's work product. The bench trial lasted five days and, as the defendant was not satisfied with the award, a jury trial was claimed. This trial lasted seven days and the jury verdict doubled the judgment of the bench trial.

In April, before the appeal was to be argued before the Appeals Court, the defendant asked the plaintiff for a bill. The plaintiff sent the defendant a bill which was equivalent to one-third of the defendant's recovery. On April 14, the defendant sent the plaintiff a letter disputing the bill, and discharged him. The defendant then retained Mr. Robert Cohen to represent him in the appeals of the eminent domain cases. As Mr. Cohen was naturally unfamiliar with the cases, he relied on the plaintiff's brief for the Appeals Court appeal. Although discharged by the defendant, the plaintiff cooperated "in every way possible" with Mr. Cohen in preparing the cases for appeal. After the Appeals Court affirmed and the NRA requested further appellate review of this court, the plaintiff again prepared the brief "which took three or four days" and mailed it to Mr. Cohen from Florida. Mr. Cohen had not planned to write a new brief for this appeal and intended to simply rely on the Appeals Court brief, but, on the plaintiff's advice, did not. ⁸ Mr. Cohen relied on the plaintiff's second brief at argument before this court.

There was an understanding between the plaintiff and the defendant as friends that the plaintiff would charge a reasonable and fair fee for his services. The plaintiff's bill was "merely an expression of [the plaintiff's] view after two trials and after preparation of the appeals brief that a fair and reasonable fee would be in the amount that did not exceed the usual common fee of [one third] the net amount plus the interest that had accrued." At no time did the plaintiff keep a record of the time spent in preparation of trial or the appeals. He did, however, "spend a great deal of time analyzing the facts in the cases [and] all of the documents presented to him."

Finally, the judge found that, on the evidence, a reasonable fee for the plaintiff's services, on a quantum meruit basis, is $350,000, plus interest from the date of the suit.

The plaintiff maintains that the judge properly considered the appropriate factors in determining his fee and that his findings are supported in the evidence. The defendant argues that many of the judge's findings relating to the determination of a reasonable fee for the plaintiff's legal services were clearly erroneous. In particular, he alleges that the judge failed to consider the time actually expended by the plaintiff and erroneously failed to admit evidence of the NRA's counsel's time charges. He also challenges the judge's finding that the eminent domain cases were complex.

1. "Findings of fact [by a trial judge sitting without a jury] shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." Mass.R.Civ.P. 52 (a ), 365 Mass. 816 (1974). That the instant case concerns the propriety of a judge's award of an attorney's fee has no special bearing on the standard of review. The question of what is fair and reasonable compensation for legal services rendered is one of fact for a trial judge to decide. First Nat'l Bank v. Brink, 372 Mass. 257, 263-264, 361 N.E.2d 406 (1977), and cases cited. Guenard v. Burke, 387 Mass. 802, 808, 443 N.E.2d 892 (1982). See Serlin v. Rotman, 371 Mass. 449, 451, 358 N.E.2d 767 (1976) (where evidence supported the judge's conclusions as to fair and reasonable value of attorney's legal services, the fact "[t]hat this court might have reached a different conclusion, less favorable to [the attorney, was] not relevant argument"). Cf. Meghreblian v. Meghreblian, 13 Mass.App.Ct. 1021, 1023-1024, 433 N.E.2d 497 (1982). Accordingly, unless our review of the record leaves this court with a definite and firm conviction that a mistake has been committed, Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, ...