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Paying
Spouse's Attorneys Fees |
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Each
person pays his own attorney fees. |
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102
Costs
102VIII
Attorney Fees
102k194.16
k. American Rule; Necessity of Contractual
or Statutory Authorization
or Grounds in Equity.
Most Cited Cases
As a general rule, a litigant must
bear his own expenses including attorney
fees, except where a statute permits
the award of costs, a valid contract
or stipulation provides for costs,
or rules concerning damages permit
recovery.
Krock
v.
Krock 46 Mass.App.Ct.
528
46 Mass.App.Ct. 528, 707 N.E.2d 839 |
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2.
Attorney's fees. Aurora urges that
the award of attorney's fees by the
second judge in the amount of $2,000
must be vacated as there is no statutory
basis for the award and no contractual
provision for fees in the parties'
separation agreement.
"As a general rule in Massachusetts,
a litigant must bear his own expenses
including attorney's fees, except
where a statute permits the award
of costs, a valid contract [or] stipulation
provides for costs, or rules concerning
damages permit[ ] recovery."
Judge Rotenberg Educ. Center, Inc.
v. Commissioner of Dept. of Mental
Retardation (No. 1), 424 Mass. 430,
468 (1997);
Krock v. Krock, 46 Mass.App.Ct. 528,
531 n. 2 (1999). See
Police Commr. of Boston v.
Gows, 429 Mass. 14, 17 (1999)
("Massachusetts generally follows
the 'American Rule' and denies recovery
of attorney's fees absent a contract
or statute to the contrary.")
Additional exceptions to the general
rule have been created, where, for
example, an insured under a homeowner's
policy has successfully established
an insurer's duty to defend,
Preferred Mut. Ins. Co. v.. Gamache,
426 Mass. 93, 95-97 (1997),
or a party has been forced to litigate
to obtain what previously had been
awarded by a court even though the
opposing party's conduct did not constitute
contempt.
Police Commr. of Boston v. Gows, 429
Mass. at 17-19. See the
case summaries in
Krock v. Krock, 46 Mass.App.Ct. at
531-532 n 2.
Beato v. Beato
60 Mass.App.Ct. 110
60 Mass.App.Ct. 1102, 798 N.E.2d 1045
(Table), 2003 WL 22724007 (Mass.App.Ct.)
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he
following case is the biggie which
most lawyers cite on appeals to demand
fees:
YORKE MANAGEMENT
v.
ELIZABETH CASTRO & ANOTHER
546 N.E.2d 342,
406 Mass. 17
the relevant section
is |
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22. |
We
have recognized the explicit language
of G. L. c. 186, § 14, which provides
for payment of attorney's fees, and
this language is not limited to attorney's
fees for trial proceedings. See Darmetko
v. Boston Hous. Auth., 378 Mass. 758,
765 (1979). Similarly, we approved
the award of attorney's fees under
G. L. c. 186, § 18, where the statutory
language is equally clear and not
limited to attorney's fees for trial
proceedings. See Ianello v. Court
Management Corp., 400 Mass. 321, 325
(1987). The language of G. L. c. 93A,
§ 9 (4), leaves no doubt as to the
right to recover attorney's fees without
any suggestion that fees for the appeal
are excluded. See Kohl v. Silver Lake
Motors, Inc., 369 Mass. 795, 801 (1976).
The statutory provisions for a "reasonable
attorney's fee" would ring hollow
if it did not necessarily include
a fee for the appeal. The right to
appellate attorney's fees under these
statutes is beyond dispute. |
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23. |
2. Procedure
for the award of attorney's fees for
appellate work. A more difficult question
is whether the rule which we announced
in Mellor v. Berman, 390 Mass. 275,
284 (1983), to the effect that "either
appellate costs nor attorney's fees
for the appeal can be imposed by a
trial court absent authorization by
an appellate court or by virtue of
a rule or statute," applies to
attorney's fees for appellate work
under the statutes in the present
case. We have treated as discretionary
in the appellate court the award of
attorney's fees on appeal where a
statute provides for the payment of
reasonable attorney's fees. Patry
v. Liberty Mobilehome Sales, Inc.,
394 Mass. 270, 272 (1985). Although,
in Mellor, the court was deciding
the issue under G. L. c. 186, § 15B,
a statute which does not figure in
the present case, the rule has been
extended to the award of appellate
attorney's fees under the statutes
in the present case. See Patry v.
Liberty Mobilehome Sales, Inc., supra. |
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24. |
We are asked
to abandon the Mellor rule in favor
of a practice which would permit a
trial Judge to award attorney's fees
for appellate services without any
authorization from an appellate court.
Despite the force and diversity of
the arguments for abandonment of the
Mellor rule, we conclude that the
rule is sound. |
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25. |
An appellate
court is in a far better position
to evaluate the worth of the appellate
work than the trial Judge. The Justice
of the appellate court who writes
the opinion for the court develops
nothing short of an intimacy with
the record on appeal and the briefs.
An appellate Justice on the quorum
or panel which hears and decides the
appeal develops a knowledge of the
case and the value of the work of
the attorney who seeks compensation.
A trial Judge simply cannot bring
to bear this familiarity with the
appellate work. |
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26. |
3. The procedure
under Mellor v. Berman. If Mellor
has left the bar unclear as to the
procedural requirements of an award
of legal fees for appellate work,
we set them forth. |
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27. |
A party who seeks an award of appellate
attorney's fees should request them
in his brief. If such party does not
prevail, he is not entitled to fees,
though no harm accrues from the request.
If such party prevails, he may then
submit his petition for fees together
with the necessary back-up material
and details as to hours spent, precise
nature of the work, and fees requested.
The other party should be given a reasonable
time to respond. The appellate Justice
who considers the petition may request
more data and may set down the matter
for hearing with notice to the other
party. This procedure places no greater
burden on the parties than the procedure
requested before the trial Judge. |
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28. |
Judgment of the
Superior Court affirmed. |
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