Miller Fence Co. v. Gordon Davis.

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

24-P-203

MILLER FENCE CO.

vs.

GORDON DAVIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In connection with a cancelled contract, Miller Fence Co.

(Miller Fence), the plaintiff, sought $2,412.27 in damages and

attorney's fees of $9,910.04 against Gordon Davis (Davis), the

defendant. A District Court judge entered summary judgment in

favor of Miller Fence on the damages claim but only awarded $800

in attorney's fees. Miller Fence appealed the amount of

attorney's fees awarded, and a panel of the Appellate Division

of the District Court affirmed. Miller Fence appeals from that

decision, and we now affirm.

Background. On August 20, 2019, the parties executed a

one-page contract for the construction of 112 feet of fencing at

a cost of $13,727 (materials, tax, and labor included), with a
completion date in ten to twelve weeks. The contract contained

additional potential charges to be borne by Davis including a

fifty-dollar cancellation fee, a twenty-percent restocking fee

for "[o]rdered material," and "legal fees and costs of

collection." Eight days later, Davis cancelled the contract and

mailed a fifty-dollar check to cover the cancellation fee.

Miller Fence returned the check, and indicated a restocking fee

had to be paid as well. Through a credit card transaction,

Miller Fence deducted the cancellation fee and what it deemed to

be the restocking fee from Davis's deposit and returned the

remainder of the deposit to Davis. Davis disputed the credit

card transaction and on November 22, 2019, obtained a chargeback

from the card issuer for his entire deposit (plus an extra

$248.87).

Represented by counsel, Miller Fence filed a complaint in

the District Court on January 16, 2020, seeking to recover the

$2,412.27 credit card chargeback as well as "legal fees and

costs of collection." On April 2, 2020, Miller Fence filed a

motion for summary judgment, and Davis, representing himself,

filed an opposition two weeks later. On August 11, 2020,

counsel for Miller Fence filed an affidavit identifying legal

fees in the amount of $9,910.04. The affidavit noted that,

despite a discounted hourly rate, Davis's "aggressive

litigation" had been "the sole driver of costs and fees." A

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week later, a judge allowed Miller Fence's motion, and on August

21, 2020, a judgment entered for Miller Fence on its underlying

damages claim, with an additional $800 for attorney's fees.

Dissatisfied with the amount awarded for attorney's fees,

Miller Fence filed a motion for clarification on August 27,

2020. The motion asserted that Miller Fence was entitled to its

"actual fees and costs" and that the judge could not "rewrite

the contract" to provide otherwise. The judge issued a two-page

clarification and explained his rationale for the $800 award of

attorney's fees. He reasoned that the "issue in dispute was not

complex and involved only a small amount in controversy." He

also noted that counsel for Miller Fence acknowledged "that this

is a very small case in which the evidence was clear." The

judge concluded that $800 was a "reasonable award" in light of

the nature of the case, the issues presented, and the amount of

damages involved.

Miller Fence appealed the award of attorney's fees to the

Appellate Division of the District Court. In its brief, Miller

Fence argued only that the judge had no discretion to determine

and award a "reasonable" fee but instead was required to award

Miller Fence its "actual attorney's fees and costs incurred."

On March 15, 2023, a panel of the Appellate Division issued a

decision affirming the award of attorney's fees. The panel

rejected Miller Fence's argument and concluded that the judge

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did not abuse his discretion in determining a reasonable amount

of attorney's fees.

Discussion. "Attorney's fees 'as between opposing parties

in litigation' are only allowed in 'limited instances,'

including 'pursuant to a valid contractual provision.'" Sea

Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 218

(2018), quoting Bournewood Hosp., Inc. v. Massachusetts Comm'n

Against Discrimination, 371 Mass. 303, 311-312 (1976). "The

party seeking attorney's fees bears the burden of showing that

the amount sought is reasonable." WHTR Real Estate Ltd.

Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229,

235 (2005). A party claiming attorney's fees must show that the

amount sought is "fair and reasonable," even where the claim is

contract-based. Citizens Bank of Mass. v. Travers, 69 Mass.

App. Ct. 174, 177 (2007), quoting First Natl. Bank v. Brink, 372

Mass. 257, 263-264 (1977). The panel of the Appellate Division

correctly rejected Miller Fence's contrary argument that it was

categorically entitled to recover all of the fees and costs it

had incurred.

That categorical argument was the only argument Miller

Fence made to the Appellate Division and thus appears to be the

only one preserved for the present appeal. Miller Fence's

effort to claim otherwise in its brief in this court, and to

suggest that it has preserved the question whether the fee the

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judge awarded was reasonable, is unsupported by any record

citation. We could thus resolve this appeal on the basis that

the argument is waived. See Albert v. Municipal Court of

Boston, 388 Mass. 491, 493-494 (1983) (argument not made by

appellant in lower court is waived on appeal).

Nevertheless, assuming in Miller Fence's favor that the

argument is properly before us, we reject it. "What constitutes

a reasonable fee is a question that is committed to the sound

discretion of the judge." Berman v. Linnane, 434 Mass. 301,

302-303 (2001). We agree with the panel of the Appellate

Division that the record does not evince an abuse of discretion

by the judge.

As the judge noted, the "issue in dispute was not complex

and involved only a small amount in controversy." Assuming

without deciding that a restocking fee for "[o]rdered material"

was due and properly calculated on a contract that was only days

old and not expected to be completed for ten to twelve weeks, we

agree that the question of Davis's liability was not

complicated, and the amount in controversy was not substantial.

Indeed, Davis never disputed that he cancelled the contract, and

he paid the cancellation fee only to have it returned with a

demand for the restocking fee. In its brief, Miller Fence

agrees that it was a "small lawsuit" and was "easily proven."

Given these circumstances, it is unsurprising that this case

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moved expeditiously from complaint to judgment in just seven

months (even with pandemic continuances) with a favorable

disposition for Miller Fence on its motion for summary judgment.

"[T]he nature of the case and the issues presented, the time and

labor required, the amount of damages involved, [and] the result

obtained" amply supported the judge's exercise of discretion.

Berman, 434 Mass. at 303, quoting Linthicum v. Archambault, 379

Mass. 381, 388-389 (1979).

We disagree with Miller Fence's contention that the judge

and the Appellate Division "utterly failed to consider the

actions of [Davis] in driving up costs, and attempts by [Miller

Fence] to mitigate costs by seeking a protective order." When

considering the reasonableness of attorney's fees, a judge may

consider numerous factors with no single factor being

determinative, and "a factor-by-factor analysis, although

helpful, is not required." Berman, 434 Mass. at 303. As

previously discussed, the judge considered the pertinent factors

as illuminated by his own experience in dealing directly with

the parties in court. See id. Contrary to the suggestions made

by Miller Fence, the judge was not required to review "each and

every [legal] invoice" or "provide an explanation of [why] more

than $9000 in time wasted by [Davis's] antics was not

reasonable." It was not the judge who had the burden of

articulating why the fees were unreasonable; it was Miller Fence

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that had the "burden of showing that the amount sought [was]

reasonable." WHTR Real Estate Ltd. Partnership, 63 Mass. App.

Ct. at 235.

We also do not view the $800 figure chosen by the judge to

be "utterly arbitrary" as Miller Fence maintains. While another

judge reviewing the same facts could have found a different

amount to be reasonable, a "judge's decision . . . is plainly

not an abuse of discretion simply because a reviewing court

would have reached a different result." L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014). Even if Davis's strategy

crossed the line from a vigorous defense to vexatious maneuvers

that unnecessarily drove up the cost of litigation as Miller

Fence insists, the judge was not required to assess these costs

against Davis in the reasonableness determination. See, e.g.,

Harrington v. Richter, 562 U.S. 86, 111 (2011) (attorneys are

not bound by "Newton's third law" requiring "an equal and

opposite" response to every action taken by opposing party).

Finally, we reject Miller Fence's contention that the judge

"had no discretion to interpose its own determination of what

was contractually reasonable in terms of fees in light of clear

and unambiguous contractual language." We have consistently

rejected similar claims. See, e.g., Citizens Bank of Mass., 69

Mass. App. Ct. at 175 (despite borrower agreeing to pay bank's

attorney's fees, judge still obliged to determine "whether the

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fees requested were reasonable and should be awarded"); Trustees

of Tufts College v. Ramsdell, 28 Mass. App. Ct. 584, 585 (1990)

(contract providing for payment of attorney's fees "limited to

an amount that is found to be fair and reasonable"). "The

Massachusetts rule limiting attorney's fees to what is fair and

reasonable, particularly when they are being imposed against an

unwilling party who did not engage the services of the attorney,

is one of significance to the administration of justice."

Trustees of Tufts College, supra at 585-586. Thus, the

contractual provision requiring payment of "legal fees and costs

of collection" did not obligate Davis to pay attorney's fees for

Miller Fence come what may.

We do not address Davis's various arguments that we should

order relief for him going beyond what the judge ordered. No

cross-appeal by Davis is before us, and "failure to take a

cross-appeal precludes a party from obtaining a judgment more

favorable to it than the judgment entered below." Boston Edison

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Co. v. Boston Redev. Auth., 374 Mass. 37, 43 n.5 (1977). We

also decline Davis's request for appellate attorney's fees.

Decision and order of the
Appellate Division
affirmed.

By the Court (Meade, Sacks &
Hodgens, JJ.1),

Clerk

Entered: April 3, 2025.

1 The panelists are listed in order of seniority.

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