Spouse's Attorneys Fees
Each person pays his own attorney fees.
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.
46 Mass.App.Ct. 528
46 Mass.App.Ct. 528, 707 N.E.2d 839
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).
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
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
Beato v. Beato 60 Mass.App.Ct. 110
60 Mass.App.Ct. 1102, 798 N.E.2d 1045 (Table), 2003 WL 22724007
The following case is the
biggie which most lawyers cite on appeals to demand fees:
ELIZABETH CASTRO & ANOTHER
546 N.E.2d 342, 406 Mass.
the relevant section is
||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.
||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.
||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.
||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.
||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.
||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.
||Judgment of the Superior Court affirmed.