Kimberly G. Granatino & Associates, P.C. v. John Afanasiw.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-536

KIMBERLY G. GRANATINO & ASSOCIATES, P.C.

vs.

JOHN AFANASIW.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This action arose out of appellant Attorney Kimberly

Granatino's representation of appellee John Afanasiw in his

divorce action in Plymouth County Family and Probate Court. It

was brought by appellant Granatino seeking to recover

outstanding legal fees. Afanasiw filed a counterclaim, which

was ultimately amended to include claims against Attorney

Granatino for negligence (malpractice claims)1 and unfair or

deceptive acts or practices pursuant to G. L. c. 93A.

A jury trial was held, with the judge reserving Afanasiw's

93A claim. The jury returned verdicts for Granatino for breach

1Afanasiw's claims of negligence were decided by the jury
in his favor. Granatino raises no arguments about these claims
in her appeal.
of contract and quantum meruit and a verdict for Afanasiw on his

malpractice claims. By agreement, the quantum meruit judgment

was dismissed as duplicative. The original judgment of April 1,

2021, was amended on January 24, 2023, by assent of all the

parties, to reflect what they agreed was the proper eighteen

percent interest on Attorney Granatino's jury award for breach

of contract damages.

After the jury verdicts, the case proceeded to a bench

trial to address Afanasiw's claim under G. L. c. 93A. The

parties agreed that the judge would consider all of the evidence

presented at the previous jury trial as well as supplemental

evidence presented in support of the 93A claim. At the end of

the bench trial, both parties moved for judgment as a matter of

law, and the judge denied both motions.

The judge issued detailed findings of fact, rulings of law,

and an order for judgment on the 93A count. The judge found

that Granatino had committed knowing or willful violations of

93A and awarded treble damages and attorney's fees and costs.

Granatino filed a motion for a new trial, and Afanasiw filed a

motion for relief from the jury's verdict on the breach of

contract claim. The judge denied both motions. Granatino filed

a motion for reconsideration of the denial of her motion for a

new trial, which was denied. Afanasiw filed a motion to assess

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attorney's fees, which was allowed in part. The judge also

allowed in part Granatino's motion for attorney's fees for the

breach of contract claim.

Granatino filed this appeal and Afanasiw filed a cross

appeal. Granatino seeks to have the judge's findings of fact,

rulings of law, order for judgment, and amended judgment on the

93A claim vacated. In the alternative, she seeks a new trial on

the 93A claim. In addition, she seeks reversal of the order

denying her motion for judgment as a matter of law regarding the

93A claim, the order partially denying her motion for attorney's

fees, and the order partially allowing Afanasiw's motion for

attorney's fees.

Afanasiw cross-appealed from the order denying his motion

for judgment notwithstanding the verdict with respect to the

breach of contract jury award. However, Afanasiw did not pay

the docket fee for his cross appeal as is required pursuant to

Mass. R. A. P. 10 (a) (1), as appearing in 481 Mass. 1618

(2019). Granatino moved to strike Afanasiw's cross appeal, and

Afanasiw filed a motion for leave to pay the docket fee late. A

single justice of this court denied Afanasiw's motion without

prejudice because Afanasiw had not shown good cause. As

Granatino's motion to strike had been referred to this panel,

the single justice also referred Afanasiw's motion to this

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panel, "to decide whether there is a meritorious cross appeal

that should be heard and decided." The single justice permitted

Afanasiw to file a revised motion supported by an affidavit, but

Afanasiw did not do so.

1. Discussion. Granatino's appeal from the 93A judgment.

The facts of the case are well known to the parties and are set

forth in great detail in the judge's findings of fact, rulings

of law, and order for judgment on Afanasiw's G. L. c. 93A, § 9,

claim, dated March 10, 2020. They will not be repeated here

except as necessary to address the particular issues before us.

"To state a claim under the consumer protection statute, G. L.

c. 93A, § 9, a plaintiff must allege facts sufficient to

establish four elements: first, that the defendant has

committed an unfair or deceptive act or practice; second, that

the unfair or deceptive act or practice occurred 'in the conduct

of any trade or commerce;' third, that the plaintiff suffered an

injury; and fourth, that the defendant's unfair or deceptive

conduct was a cause of the injury." Rafferty v. Merck & Co.,

479 Mass. 141, 161 (2018), quoting G. L. c. 93A, § 2 (a). "We

review a judge's findings of fact under the clearly erroneous

standard and [their] conclusions of law de novo. . . . A ruling

that conduct violates G. L. c. 93A is a legal, not a factual,

determination[,]. . . [a]lthough whether a particular set of

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acts, in their factual setting, is unfair or deceptive is a

question of fact." Klairmont v. Gainsboro Restaurant, Inc., 465

Mass. 165, 171 (2013), quoting Casavant v. Norwegian Cruise Line

Ltd., 460 Mass. 500, 503 (2011).

Granatino argues first that there was clear error in the

factual findings underpinning the judge's conclusion that she

engaged in unfair or deceptive acts or practices. The judge

made many factual findings concerning Granatino's conduct, but

the findings of unfair or deceptive acts or practices were

these: The judge stated,

"Granatino purposefully billed Afanasiw at her attorney's
rate of $300 per hour when the work was actually performed
by her paralegal and should have been billed at the lower
rate. Moreover, Granatino took the extra step of
deliberately changing some of her paralegal's billings to
her own before sending the invoices out to Afanasiw.
Granatino also billed Afanasiw for the same work performed
by herself and her paralegal."

The judge also found that,

"[a]t some point in 2013, during her representation,
Granatino directed Afanasiw to pay $1,000 to [his wife's]
Attorney Raymond Arabasz. . . . Granatino told Afanasiw
that his payment was necessary in order to move the case
forward but did not otherwise specify the purpose of the
payment. Afanasiw paid Arabasz $1,000 per the direction of
Granatino."

This payment was separate from the payment of any amounts by

Afanasiw to his wife or to his own attorney. The judge said,

"The court also finds that Granatino's request for payment from

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Afanasiw directly to Arabasz without any explanation as to the

reason for the payment is an unfair and deceptive act."

There are other factual findings describing conduct by

Granatino. The judge found that Granatino's paralegal's hourly

rate was increased from $150 to $175 per hour at some point

during Granatino's representation of Afanasiw, without notice to

Afanasiw. The judge found that Granatino never followed up to

obtain more information about $48,000 that Afanasiw told her he

thought was part of the marital estate and being hidden by his

wife in a bank account in the name of his stepdaughter. He also

found that Granatino presented Attorney George Marlette as an

independent attorney with whom she shared office space, but that

she neglected to explain that she was also engaged in a personal

relationship with Marlette. Marlette advised Afanasiw that the

settlement agreement proposed by his wife was "about the best

deal [Afanasiw] was going to get." And later, when Marlette

contacted Afanasiw to encourage him to pay his outstanding legal

bills from Granatino, Afanasiw told Marlette that he was

contemplating bankruptcy, to which Marlette responded that

outstanding legal fees might survive a bankruptcy discharge.2

2 Marlette initially acted as trial counsel in this action
to collect outstanding legal fees from Afanasiw. Afanasiw moved
to disqualify Marlette, and although that motion was denied,
Marlette withdrew as Granatino's counsel in the middle of the
93A bench trial and she retained successor counsel.

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But these findings about Attorney Marlette did not explicitly

form the basis for the judge's finding of a 93A violation by

Granatino.

We conclude that there was factual support for the judge's

finding that Granatino had wrongly billed her paralegal's work

under her own name, at a rate twice that she charged for

paralegal work, and thus no clear error in that finding. In

particular, there was evidence that in Afanasiw's divorce case,

the paralegal drafted the complaint, but Granatino billed it at

her higher rate, the invoice stating that she herself had done

that work. There is no error in the judge's conclusion that

this amounts to an unfair or deceptive act or practice, and this

alone supports the judgment on the 93A claim.

The judge's finding about the payment to opposing counsel

also was not clearly erroneous as it was well supported by the

evidence. We also see no error in the conclusion of the judge

that on these facts and circumstances, requesting an irregular

payment directly to opposing counsel with no explanation –-

something for which we cannot readily imagine a proper

explanation –- is also an unfair or deceptive act or practice.

Much of Granatino's brief is focused on an attachment to

Afanasiw's proposed findings of fact filed about a month after

the close of all evidence, which was denominated "Exhibit C."

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Granatino argues that this was new evidence considered by the

judge but not properly before him because it was submitted after

the close of all evidence. She also argues that Exhibit C was

misleading and mischaracterized the evidence. She is mistaken.

Exhibit C is nothing but a marshaling of evidence admitted

during the trial, in the form of a table summarizing alleged

irregularities in invoices and billing records, designed to

demonstrate for the judge's benefit what Afanasiw was alleging

were improper practices. There was thus no error in Afanasiw's

submitting this nor the judge's considering it. See Mass.

G. Evid. § 1006 (2024).

We do, however, see an issue with respect to the

calculation of at least some of the damages based on arguments

made by Afanasiw in Exhibit C. For example, there are places

where Exhibit C identifies instances that Afanasiw asserts are

double billing. These include the invoices showing work on a

letter by the paralegal and work on a letter by the attorney,

multiple billing entries regarding drafting of certain

documents, and both the paralegal and attorney billing for

attending the same meeting.

We find no support anywhere in the testimony, however, for

a conclusion that Granatino engaged in double billing. And the

language of these invoices alone is insufficient to support a

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factual finding by a preponderance of the evidence that these

were charges for the same work, rather than for Granatino's

review of the paralegal's work, for work on two different

letters, or for the normal practice of a paralegal and an

attorney both attending the same meeting.

Consequently, we think the calculation of damages, which

included adoption of Exhibit C's calculations treating these

records in this way, was in error.3 While expressing no

conclusion on the proper measure of damages in a case like this,

where witnesses may not remember all the details of the work or

billing, we vacate the amended judgment's award of damages on

the 93A claim and remand to the trial court for a recalculation

of damages.4 Because we affirm the underlying decision that

Granatino violated 93A, we find no error in the denial of

Granatino's motion for new trial.

3 There were at least some actual damages in the case that
have clearly been proven, for example, the amounts for
preparation of the complaint billed at the attorney's rate that
were above what would have been billed at the proper paralegal
rate.

4 We leave undisturbed the judge's decision to treble
damages due to the knowing and willful nature of Granatino's
conduct. However, we note that one of the unfair or deceptive
practices found and relied on by the judge in his decision on
the 93A claim was double billing. Consequently, on remand, in
light of our conclusion, should the judge choose to, he may
reconsider whether the remaining deceptive acts or practices
warrant a treble damage award, a question on which we express no
opinion.

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2. Afanasiw's cross appeal. Turning to the cross appeal,

we must first decide the two open motions before us:

Granatino's motion to strike Afanasiw's cross appeal and

Afanasiw's motion for leave to pay docket fee late. A cross

appellant must pay a docket fee within fourteen days after

receiving the notice of assembly of the record, or must request

a waiver of the fee within that time. Mass. R. A. P.

10 (a) (1) (A). A single justice may, on motion, enlarge the

time for docketing the appeal or permit late docketing, Mass.

R. A. P. 10 (a) (3), but only if "'excusable neglect' or 'good

cause'" is shown. Giacobbe v. First Coolidge Corp., 367 Mass.

309, 315-316 (1975).

In this case, the single justice held that Afanasiw's

motion did not show good cause, so he denied Afanasiw's motion

without prejudice and referred it to this panel, noting that

Afanaisw was permitted, but not required, to file a revised

motion supported by an affidavit describing the circumstances

that led to the delay in paying the docket fee. Afanasiw did

not file a revised motion or affidavit, and his original motion

provides no cause, let alone good cause, for his failure to pay

the docket fee on time. Therefore, we cannot find that Afanasiw

has shown good cause to pay the docket fee late. The motion to

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strike therefore must be allowed and the motion to pay the

docket fee late, denied.

In any event, were we to reach the merits of Afanasiw's

cross appeal, which have been briefed, we would find his cross

appeal to be without merit.

Afanasiw argues that in light of the judge's findings and

conclusions with respect to the 93A claim, the judgment against

him for breach of contract cannot stand, and that he is entitled

to judgment thereon. He points out that "[i]t is well

established that a material breach by one party excuses the

other party from further performance under the contract," Ward

v. American Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100

(1983), suggesting that Granatino's actions materially breached

the contract, relieving him from the duty of performance. The

judge concluded, however, that Afanasiw was not entitled to

judgment on the contract claim, as he had never raised breach in

defense of the claim, either before or during the trial on the

contract claim. We see no error in that conclusion.

Afanasiw also argues that the fee agreement was

unconscionable. He does not specify in what way the contract

itself was, in his view, unconscionable, and we therefore are

not persuaded.

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3. Attorney's fees. Granatino appeals from the award of

attorney's fees to Afanasiw, arguing that he should not have

been awarded any attorney's fees because his claims were "false

and frivolous." She also appeals from the partial denial of her

attorney's fees, stating that she should have been granted the

full amount that she requested because of Afanasiw's "frivolous

counterclaims and his counsel's inappropriate and unethical

conduct during trial." We disagree that Afanasiw's 93A claim

was frivolous. We find no abuse of discretion or clear error in

the judge's decisions partially allowing attorney's fees for

both Granatino and Afanasiw.

Afanasiw seeks appellate attorney's fees, arguing that he

is entitled to them as the prevailing party under the 93A claim,

which is correct. Siegel v. Berkshire Life Ins. Co., 64 Mass.

App. Ct. 698, 707 (2005). Afanasiw is entitled to an award of

fees and costs in connection with his successful opposition to

Granatino's appeal from the judgment on the 93A claim. Within

thirty days of the issuance of the decision in this case,

Afanasiw may apply to the panel for an award of appellate

attorney's fees and costs, in accordance with the procedure

described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Granatino will then have fourteen days thereafter to respond.

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Conclusion. The amended judgment dated January 24, 2023,

is affirmed in all respects except as to the calculation of

damages on the G. L. c. 93A claim. That portion of the amended

judgment is vacated, and the case is remanded for a

recalculation of damages on that claim.

So ordered.

By the Court (Rubin, Grant &
Hershfang, JJ.5),

Clerk

Entered: October 7, 2024.

5 The panelists are listed in order of seniority.

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