Opinion
10-P-2245
01-24-2012
DAVID E. NEITLICH v. DENISE RUSSO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Answering special questions, a jury found that Denise C. Russo had not agreed to pay Attorney David E. Neitlich at a specified hourly rate for his services. Represented by counsel, Neitlich appeals from the judge's refusal to set aside the verdict as against the weight of the evidence. We affirm.
In addition to the order denying Neitlich's motion for a new trial, his notice of appeal identified the judgment and an order dissolving an attachment of real estate as subjects of the appeal. However, Neitlich's arguments on appeal focus solely on his new trial motion.
Background. In 1996, concerned for the health and welfare of her aunt, a resident of the Aberjona Nursing Center (Aberjona), Russo asked Neitlich to perform services to assist her aunt. At the time, Russo's cousin, Charles Porter, Jr., was not paying his aunt's numerous bills. After entering into a written fee agreement with Aberjona, Neitlich worked with Aberjona's attorney in an attempt to collect money from Porter. Following her aunt's death in 1999, Russo executed a written fee agreement, retaining Neitlich 'in connection with the [e]states of [her aunt and uncle].' Porter subsequently absconded with estate assets, and left Massachusetts. When Neitlich was unable to collect his fees from Porter or the estates, he demanded payment from Russo personally. Russo refused to pay Neitlich's $85,000 legal bill, claiming Neitlich had agreed to be paid from the estates.
Russo's aunt and uncle, Philomena and Frederick Porter (the latter of whom died in 1995), had selected Porter, their nephew and an attorney, to handle their affairs (naming him the trustee of their trusts, the executor of their wills, and the holder of the powers of attorney). In 1996, there were significant trust fund and estate assets available for the aunt's care and protection.
For the first three years of the representation, Russo had no written fee agreement with Neitlich.
Russo had no interest in her uncle's estate and a one-seventeenth interest in her aunt's estate. Upon settlement of the debts of the estates, Russo walked away with only a grandfather clock, a table, and four chairs. Neitlich received approximately thirty thousand dollars in attorney's fees from Aberjona and Porter in connection with the nine legal actions he brought. At the time of trial, litigation against Porter for the unpaid fees was still pending in Florida.
Discussion. A judge should not set aside a verdict as against the weight of the evidence unless satisfied that the jury 'failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.' Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989), quoting from Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). Applying this well-known standard of review, we conclude that Neitlich has failed to show an abuse of discretion in the denial of his motion. See W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 747-748 (1993).
We decline Neitlich's invitation to abandon the traditional tests used to demonstrate an abuse of discretion.
Neitlich's contention that the judge applied the incorrect standard is contrary to the facts of record and based upon speculation. In her memorandum of decision, the trial judge (1) cited the appropriate principles of law applicable to her evaluation of Neitlich's motion, and (2) indicated that she had applied this standard. In light of these express statements, and the judge's reference to several pieces of evidence, not all of which favored Russo, the judge's decision reflects the process of evidence weighing that is required by the legal standard governing such motions. Moreover, where, as here, there were multiple factors in play, the judge was entitled to focus upon the evidence she found most probative in support of the jury's verdict. In sum, we find no merit to Neitlich's contention that in denying his motion for a new trial, the judge applied an inappropriate standard, such as that applicable to a motion for judgment notwithstanding the verdict. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007).
We note that as Neitlich concedes, the judge specifically discussed the written fee agreement, Neitlich's best evidence in the case and the primary basis of his motion for a new trial.
Nor are we persuaded that the judge failed to interpret the contract in accordance with the proper canons of construction. We agree with the judge's conclusion that the written fee agreement drafted by Neitlich was ambiguous and uncertain regarding Russo's payment obligations, permitting consideration of extrinsic evidence. In denying Neitlich's motion, the judge concluded that the jury's interpretation of the parties' agreement was reasonable. All of the factors considered by the judge in reaching that conclusion were proper, including the inconsistencies in the relevant text of the contract (a ruling which Neitlich admits was within the judge's discretion), Neitlich's failure to charge Russo a retainer for his services (evidence surrounding the creation of the agreement), and Neitlich's failure to bill Russo during the ten-year representation (postcontract formation conduct). See Merrimack Valley Natl. Bank v. Baird, 372 Mass. 721, 723-724 (1977); Browning-Ferris Indus., Inc. v. Casella Waste Mgmt. of Mass., Inc., 79 Mass. App. Ct. 300, 307, 309 (2011).
For the first time on appeal, Neitlich argues that given their preexisting business relationship and his trust in Russo, he saw no need to take a retainer, to issue any interim bills, or to inform Russo of her potential liability for the burgeoning legal fees, and thus the judge erred by relying upon these irrelevant considerations. Apart from the fact that these contentions are not properly before us, see Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004), those factors were relevant to the question of the parties' reasonable expectations regarding Russo's liability for the fees. In sum, the jury's conclusion that Russo was not personally liable for the fees was not against the weight of the evidence.
Their business relationship consisted of one prior legal engagement for which Russo paid Neitlich a contingency fee at the end of the proceedings and wallpapering work Russo performed at Neitlich's home. At no time below did Neitlich offer testimony regarding his reasons for the lack of a retainer or interim bills, or evidence or argument regarding the 'established business usage' of retainers and interim bills. An appeal is not the appropriate time for introducing new topics into a case.
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Finally, we conclude that the verdict may stand without working a manifest injustice upon Neitlich. The jury found Russo's account of the parties' fee discussions credible, a matter entirely within their province. To the extent Neitlich complains about being stuck with $85,000 in unpaid fees (for over four hundred hours of work), a few changes to his boilerplate fee agreement would have avoided this situation. Moreover, as an attorney, Neitlich had a professional obligation to provide Russo with enough information to allow her to make informed decisions about the representation. See Mass.R.Prof.C. 1.4(b), 426 Mass. 1314 (1998); Matter of the Discipline of an Attorney, 451 Mass. 131, 146-147 & n.23 (2008). As the judge noted, when the legal fees began to accumulate, Neitlich failed to sit down with Russo, a wallpaper hanger who lived with her sister in the mortgaged family home, to discuss the important question whether it was worthwhile to continue the serial litigation against the uncooperative Porter. By failing to take that action, Neitlich deprived Russo of the opportunity to end the representation at a much earlier date for a much lower fee. Finally, Neitlich failed to object to the jury instructions he now claims were erroneous, unnecessary, and confusing. Based upon our review of the challenged instructions, we find no prejudicial error. See Blackstone v. Cashman, 448 Mass. 255, 270 (2007).
Finally, Russo seeks appellate attorney's fees and costs under Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). Neitlich's brief cites no case which provides any support for his claim that in denying the motion for a new trial, the trial judge abused her discretion or allowed a manifest injustice to occur. This case involves a quintessential example of a dispute that was reasonable to present to a jury, but that was unreasonable to litigate on appeal following the denial of a motion for a new trial. Russo's request for appellate attorney's fees and costs is allowed. Russo shall, within fourteen days of the date of the rescript in this case, file and serve a petition for attorney's fees incurred on appeal, supported by an affidavit and other appropriate materials detailing such fees and costs in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Neitlich will have fourteen days thereafter to respond.
Judgment affirmed.
Order denying motion for new trial affirmed.
Order dissolving attachment affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),