Robbins v. Krock

• Decision Date: 13 November 2008
• Docket Number: No. 07-P-1459.,07-P-1459.
• Citation: 896 N.E.2d 633,73 Mass. App. Ct. 134
• Court: Appeals Court of Massachusetts
• 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.

Present: GRASSO, SMITH, & TRAINOR, JJ.

TRAINOR, J.

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 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 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 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 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 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 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 attorney or law firm for self-representation when the attorney or firm, in rendering services for itself, has potentially incurred as much pecuniary loss as if it had employed outside counsel.... [I]t should be of no significance to the party bound to pay attorney's fees whether the award of fees is to an attorney or firm representing itself or is to retained counsel").

The note is a contract, see Cherry v. Sprague, 187 Mass. 113, 116-117, 72 N.E. 456 (1904); Plasko v. Orser, 373 Mass. 40, 41, 364 N.E.2d 1220 (1977), wherein the parties agreed by contractual provision that, in addition to the principal amount, "[Krock] shall also be liable for any attorneys' fees and costs incurred by the [plaintiff]."⁷ See American Serv. & Supply Co. v. Raby, 348 Mass. 720, 721, 206 N.E.2d 94 (1965). See also Beacon Hill Civic Assn. v. Ristorante Toscano, Inc., 422 Mass. 318, 320, 662 N.E.2d 1015 (1996) ("`[T]he general rule of our law is freedom of contract' .... That principle rests on the premise that it is in the public interest to accord individuals broad powers to order their affairs through legally enforceable agreements" [citations omitted]); TAL Financial Corp. v. CSC Consulting, Inc., 446 Mass. 422, 430, 844 N.E.2d 1085 (2006) ("Under freedom of contract principles, generally, parties are held to the express terms of their contract ...").

"In interpreting a written contract, such as a [promissory note], the court gives full effect to all the terms expressed by the parties. The terms stated by the parties will be taken in their plain and ordinary sense unless otherwise indicated by the contract. It is not the role of the court to alter the parties' agreement." Rogaris v. Albert, 431 Mass. 833, 835, 730 N.E.2d 869 (2000) (citations omitted). We are guided by "[j]ustice, common sense and the probable intent of the parties" when interpreting the written agreement. Fried v. Fried, 5 Mass.App.Ct. 660, 664, 368 N.E.2d 1222 (1977), citing Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 701, 200 N.E.2d 248 (1964). See Richard Clothing Mfg. Co. v. Gutstein-Tuck, Inc., 328 Mass. 386, 389, 103 N.E.2d 702 (1952) (contract "must be construed as a whole, giving to the words their natural and usual meaning in the light of the circumstances in which they were employed in order to ascertain the intention of the parties"); 11 Williston, Contracts § 32:5 (4th ed. 1999).

Relying on these principles, we conclude that the phrase "Borrower shall also be liable for any attorneys' fees and costs incurred by the Lender" includes attorney's fees associated with collecting the judgment. We disagree with the defendants' semantic argument concerning plaintiff's "suit on judgment" as compared to the note. This argument merely favors form over substance, as it ignores that the fundamental purpose of the phrase is to permit attorney's fees if Krock defaulted. It is well settled that the attorney's fees and costs incurred in enforcing a note are an anticipated and necessary component of the collection process, and they are recoverable when, as here, the underlying note calls for their recovery. See Penney v. First Natl. Bank, 385...