Robbins v. Krock, 07-P-1459.

• Court: Appeals Court of Massachusetts
• Citation: 896 N.E.2d 633,73 Mass. App. Ct. 134
• Decision Date: 13 November 2008
• Docket Number: No. 07-P-1459.,07-P-1459.
• Parties: Deirdre H. ROBBINS v. Barbara J. KROCK & another.<SMALL><SUP>1</SUP></SMALL>

896 N.E.2d 633 73 Mass. App. Ct. 134 Deirdre H. ROBBINS
v.
Barbara J. KROCK & another.¹ No. 07-P-1459. Appeals Court of Massachusetts, Middlesex. Argued June 3, 2008. Decided November 13, 2008.

Steven F. Smoot, Boston, for the defendants.

Deirdre H. Robbins, pro se.

[896 N.E.2d 634]

Present: GRASSO, SMITH, & TRAINOR, JJ.

TRAINOR, J.

73 Mass. App. Ct. 134

This appeal involves the collection of unpaid legal fees. The defendants raise several issues on appeal, primarily involving the amount of attorney's fees that were awarded. For the reasons stated below, we affirm.

Procedural history. The plaintiff, an attorney, and Barbara

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Krock, a former client, executed a promissory note (note)² relating to $19,284 of unpaid fees for legal services. When Krock failed to pay the note, the plaintiff, representing herself, filed a lawsuit in District Court to enforce the note and obtained a judgment of $27,790.50. The judgment included the value of the note plus attorney's fees, interest, fees, and costs.

Krock failed to pay the judgment, and the plaintiff, again representing herself, initiated a lawsuit in Superior Court seeking to collect the unpaid judgment as well as her attorney's fees and costs. The plaintiff named in this action Krock and Robert L. Goren, a trustee of two nominee trusts of which Krock was the sole beneficiary.³ Each defendant was served by a sheriff delivering a copy of the summons and complaint to their "last and usual place of abode." After the defendants failed to answer the complaint or the amended complaint,⁴ the plaintiff successfully moved for a default and assessment of damages. After receiving notice of the default, the defendants then became involved in the lawsuit. They filed a motion to set aside the default and for leave to file an answer late, as well as a subsequent motion for reconsideration, both of which were denied.⁵ After a hearing on damages, a judge entered a judgment, jointly and severally, of $42,989.71,

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consisting of the original judgment of $27,790.50 plus interest, attorney's fees, and costs, in favor of the plaintiff.

Attorney's fees.⁶ The parties do not dispute that the plaintiff is entitled to

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reasonable attorney's fees for obtaining the judgment, which was based on the note, in District Court. Gramatan Natl. Bank & Trust Co. v. Montgomery, 343 Mass. 129, 129, 177 N.E.2d 577 (1961) ("Reasonable attorney's fees may be recovered on an overdue note which so provides"); Widett & Widett v. Snyder, 392 Mass. 778, 787, 467 N.E.2d 1312 (1984) (appellate fees awarded in connection with debtor's obligation to pay cost of collection of note); Trustees of Tufts College v. Ramsdell, 28 Mass.App.Ct. 584, 585, 554 N.E.2d 34 (1990) ("Under Massachusetts law, a borrower may be liable for attorney's fees if the note expressly provides for them, but they are limited to an amount that is found to be fair and reasonable"); Krock v. Krock, 46 Mass.App.Ct. 528, 531 n. 2, 707 N.E.2d 839 (1999), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 468, 677 N.E.2d 127 (1997) ("As a general rule in Massachusetts, a litigant must bear his own expenses including attorney's fees, except where a statute permits the award of costs, a valid contract [or] stipulation provides for costs, or rules concerning damages permit[ ] recovery"); Citizens Bank v. Travers, 69 Mass.App.Ct. 174, 177, 866 N.E.2d 974 (2007).

The defendants argue, however, that the plaintiff is not entitled to recover additional attorney's fees, i.e., fees that were awarded as a result of the Superior Court action needed to collect the

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District Court's judgment. The defendants also contend that, because the plaintiff is pro se and did not hire and pay for counsel, additional attorney's fees have not been "incurred by the lender" pursuant to the language of the note. We disagree. There is no case law in Massachusetts regarding whether a pro se attorney, under either statute or contract, is entitled to attorney's fees that have been "incurred." Compare Calhoun v. Calhoun, 339 S.C. 96, 100, 529 S.E.2d 14 (2000) (interpreting "incur" in State's divorce statute to preclude recovery), and Anderson v. Wheeler, 214 Or.App. 318, 320-322 & n. 1, 164 P.3d 1194 (2007) (precluding recovery under arbitration statute), with Winer v. Jonal Corp., 169 Mont. 247, 250-251, 545 P.2d 1094 (1976) (allowing fees for pro se attorney under provision of promissory note providing for attorney fees as "better rule"). We recognize that a pro se attorney has been denied attorney's fees under civil rights "fee-shifting" statutes. See Kay v. Ehrler, 499 U.S. 432, 437, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991) (reasoning that Congress's concern in drafting 42 U.S.C § 1988 was "the interest in obtaining independent counsel for victims of civil rights violations"); Miller v. Commissioner of Correction, 36 Mass.App.Ct. 114, 120-121, 629 N.E.2d 315 (1994) (claim based on 42 U.S.C. § 1988 remanded for determination of fees for stand-by counsel).

The reported cases in other jurisdictions are in conflict as to whether a lawyer representing herself in a pro se capacity has the right to recover attorney fees. We believe the better rule to be one that allows

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an attorney who represents herself to recover the same costs she would be entitled to if she had been represented by another. The amount of the fee to be awarded is based on the reasonable value of the services rendered, not whether or how much the prevailing party actually paid. See Sherry v. Sherry, 622 P.2d 960, 966 (Alaska 1981) (awarding fees to prevailing attorney litigant in child custody lawsuit); Giguere v. SJS Family Enterprises, Ltd., 155 P.3d 462, 473 (Colo.Ct. App.2006); Quick & Reilly, Inc. v. Perlin, 411 So.2d 978, 980 (Fla.Ct.App.1982) (discussing split of authority and citing cases); Harkleroad v. Stringer, 231 Ga.App. 464, 467-468, 499 S.E.2d 379 (1998) (awarding attorney's fees to pro se law firm under abusive litigation statute); Deutch & Shur, P.C. v. Roth, 284 N.J.Super. 133, 141-142, 663 A.2d 1373 (1995) (awarding fees under frivolous litigation statute, for "[i]t cannot be argued that plaintiffs have not expended something for which

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they deserve to be compensated. An attorney representing himself expends time. The old adage that `Time is money' has no greater validity than in an attorney's world. The time spent by an attorney defending a frivolous claim could have been spent working on a matter for a paying client"); Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J.Super. 1, 15-19, 783 A.2d 246 (2001) (awarding attorney's fees to pro se law firm suing for unpaid legal fees, under offer of judgment rule); Hinkle, Cox, Eaton, Coffield & Hensley v. Cadle Co., 115 N.M. 152, 848 P.2d 1079, 1085 (1993) ("It would be unjust to deny fees to an...