Opinion
No. 15–P–858.
07-05-2016
Thomas C. FRANKS & others v. Thomas A. MITCHELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case involves the allowance, within four months of the suit's filing, of a special motion to dismiss pursuant to G.L. c. 231, § 59H, the anti-SLAPP (Strategic Litigation Against Public Participation) statute. Thomas A. Mitchell, the successful special movant, appeals arguing that the amount of attorney's fees awarded is unduly low. There is no cross-appeal.
The motion judge concluded that thirty hours of the 98.7 hours sought was a fair and reasonable amount of time to have “effectively pursued” the entire matter. Mitchell has not challenged the amount of costs awarded in this appeal.
On appeal, Mitchell asks this court to adopt Federal case law requiring detailed factual findings in cases that involve significant reductions in the amount of fees requested. We see no need to do so. Suffice it to say that in light of the statutory purposes undermined by the amount of the award and the inadequate findings underpinning it, the award was “clearly erroneous,” and cannot stand. North Am. Expositions Co., Ltd. Partnership v. Corcoran, 452 Mass. 852, 872 (2009).
The plaintiffs commenced this SLAPP suit to punish Mitchell, a retired school teacher, for exercising his constitutional rights. See Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 161–162 (1998). On remand, the judge should consider not only the deterrent and reimbursement purposes of G.L. c. 231, § 59H, but also the important underlying interests that statute seeks to protect. See Fabre v. Walton, 436 Mass. 517, 525 (2002) ; Polay v. McMahon, 468 Mass. 379, 388–389 (2014). As parsimonious fee awards scare away competent attorneys, the judge should also consider the public interest in attracting capable counsel to defend these disfavored cases. See Haddad v. Wal–Mart Stores, Inc. (No. 2), 455 Mass. 1024, 1025 (2010).
In determining the amount of reasonable time spent on the case, the judge appropriately considered the difficulty of the issues. On remand, he may also consider other factors typically applied by the courts in fee-shifting cases. See Linthicum v. Archambault, 379 Mass. 381, 388–389 (1979). For example, Mitchell's attorneys achieved complete success for their client. In addition, the plaintiffs' aggressive litigation tactics may warrant a more substantial time allocation. See North Am. Expositions Co., Ltd. Partnership v. Corcoran, supra. On the other hand, the judge may make some downward adjustment for any excessive and unnecessary time and duplication of effort. See Ibid. (finding no reason to disturb fifteen percent reduction for “moderately excessive” time expended).
On the same day that the plaintiffs filed their multi-count complaint against Mitchell, they also filed a motion for a preliminary injunction and sought a hearing. Notwithstanding attempts by Mitchell's attorneys to secure the withdrawal of the motion (backed by case law showing the futility of the position), the plaintiffs insisted on forging ahead. As a result of the intransigence, Mitchell was forced to incur additional legal fees.
The plaintiffs did not question the reasonableness of the hourly rates authenticated below. After noting the “extensive” and “considerable” experience of Mitchell's attorneys, however, the judge reduced their rates without providing any reasonable explanation. On remand, the judge should support such reductions, if any, with sufficient findings.
The judge praised the attorneys' skills, finding that the special motion to dismiss and accompanying oral argument were “models of effective, concise legal writing and oral advocacy.”
So much of the judgment addressing the amount of attorney's fees awarded is vacated and that matter is remanded for further proceedings consistent with this memorandum and order. In all other respects the judgment is affirmed.
Mitchell's request for appellate attorney's fees is denied.
So ordered.