Robbins v. Krock
Robbins v. Krock
Opinion of the Court
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 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.
Attorney’s fees.
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
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 (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 (1995) (awarding fees under frivolous litigation statute, for “[i]t cannot be argued that plaintiffs have not expended something for which
The note is a contract, see Cherry v. Sprague, 187 Mass. 113, 116-117 (1904); Plasko v. Orser, 373 Mass. 40, 41 (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].”
“In interpreting a written contract, such as a [promissory note], the court gives full effect to all the terms expressed by the parties.
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 Mass. 715, 723 (1982) (attorney’s fees and costs associated with counterclaims and defenses of claims asserted by debtor are recoverable by note holder). Under the circumstances of this case, where the lawsuit involves the collection of attorney’s fees associated with the enforcement of judgment, and the defendants’ refusal to pay the judgment necessitated further legal action, the additional attomey’s fees incurred in collection of the judgment were “within the fee provision^ of the note[J.” Id.
The context of the phrase is important, as it is contained in the “DEFAULT” section of the note, which anticipates Krock failing to pay the balance of the note. The preceding (and undisputed) sentence involves the parties’ consent to an entry of judgment against Krock. The parties anticipated that the plaintiff would accrue attorney’s fees if judgment were entered.
Lastly, the plaintiff is also entitled to reasonable appellate attorney’s fees, as she followed the appropriate procedures by requesting them in her briefs. Within ten days of the issuance of the rescript of this opinion, the plaintiff may file with this court a petition for appellate attorney’s fees and costs of appeal in accordance with the procedure described in Yorke Mgmt. v. Castro, supra at 20. The defendant shall have ten days thereafter to file a response.
For the foregoing reasons, the judgment is affirmed.
So ordered.
The note includes three sections, “BORROWER’S PROMISE TO PAY,” “INTEREST,” and “DEFAULT.” Without reciting the entire note, it includes general language regarding Krock’s promise to pay the principal amount of $19,284 within two years with interest at a yearly rate of four percent. The pertinent portion of the note is the “DEFAULT” provision, which states that “[i]f Borrower [Krock] fails to pay the balance, with interest, by two years from the above date, Borrower consents to the entry of judgment against her and in favor of Lender [plaintiff] in a court of competent jurisdiction for $20,826.72. Borrower shall also be liable for any attorneys’ fees and costs incurred by the Lender.”
Upon motion and a hearing, a judge allowed the plaintiff an attachment in the amount of $50,000 on one of the parcels of land Goren owns as trustee for the benefit of Krock.
The amended complaint corrected the name of Robert L. Goren in the caption, who had been named not as trustee but individually. The amended complaint also contained more specific allegations about the two trusts and the two properties.
It is worth noting that, in her opposition to these motions as well as her memorandum of damages, the plaintiff relied upon, as an alternative to the note, the frivolous litigation statute, which provides that reasonable attorney’s fees shall be awarded. G. L. c. 231, § 6F. It appears, however, that the lower court orders were based on the note, rather than on that statute.
The defendants raise two additional arguments that do not warrant extended discussion. First, they argue improper service of the summons and complaint because a sheriff served them at their “last and usual place of abode,” without subsequently mailing a copy pursuant to G. L. c. 223, § 31. The defendants concede that the statute applies to actions brought in District Court and that Mass.R.Civ.P. 4(d)(1), 365 Mass. 733 (1974), does not require such a mailing.
Second, they contend that Krock is not a beneficiary of Goren’s trusts, and therefore the trusts are not subject to attachment. It is well established that “[ujpon default under Mass.R.Civ.P. 55(b), 365 Mass. 822 (1974), the factual allegations of a complaint are accepted as true for purposes of establishing liability.” Marshall v. Stratus Pharmaceuticals, Inc., 51 Mass. App. Ct. 667, 670-671 (2001), quoting from Multi Technology, Inc. v. Mitchell Mgmt. Sys., Inc., 25 Mass. App. Ct. 333, 334-335 (1988) (citation omitted). The complaint alleges that “Barbara J. Krock is the sole beneficiary” of both trusts. The plaintiff also introduced substantial evidence that Krock is the sole beneficiary under the First Hill Top Realty Trust.
The dictionary definition of the word “incur” is not contrary to our conclusion here. Random House Webster’s Unabridged Dictionary 969 (2d ed. 1997) defines the word as “to come into or acquire (some consequence, usually undesirable or injurious).” We believe that this definition would include the time and services expended in the management and trial of an attorney’s own cause because this may have amounted to as much pecuniary loss or damage to the attorney as if she had paid another attorney for representation.
Reference
- Full Case Name
- Deirdre H. Robbins v. Barbara J. Krock & another
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- 16 cases
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- Published