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Superior Court – Civil Practice – Endorsement

Civil Practice


Where, on Jan.23, 2002, the Supreme Judicial Court issued its decision in the case of Drywall Systems v. ZVI Construction Company, 435 Mass. 664 (2002), I find that the just mentioned decision compels the present court to vacate most of an Oct. 4, 2002 endorsement but not the endorsed result.

“The award of fees pursuant to G.L.c. 151B, §9, is a proper subject for arbitration despite the strictures of G.L.c. 251, §10….

The arbitrator declined to award fees on his belief that G.L.c. 251, §10, barred him from doing so. The plaintiff failed to seek a timely modification of the arbitrator's award per G.L.c. 251, §§12, 13. Drywall was decided on January 23, 2002. The award is dated June 10, 2002. On August 19, 2002, the plaintiff filed her motion for attorney's fees wherein she asked the court, not the arbitrator, to set the fees. The court cannot address the propriety of the arbitrator's decision outside the time limitation imposed by chapter 251….

LaRoche is a unique case wherein legal fees were assessed on a discovery dispute. The dispute arose while the case was pending in the Superior Court. After discovery, the parties entered into binding arbitration. The appellate court held that the pre-arbitration fees were to be set by the Superior Court, not by arbitration. While the LaRoche decision is instructive, it does not control the case at hand.

[Plaintiff Mary Lyn] Senna and [defendant] Professional Food Service [Management, Inc.] agreed ‘to submit the above-captioned matter' to arbitration. There is no further definition of the scope of the claim within the JAMS Agreement to Arbitrate. Rule 7(a) of the JAMS Streamlined Arbitration Rules and Procedures provides that the pleadings as filed in court constitute notice of the claims being pressed by each party Senna's claim for attorney's fees appears throughout her pleadings. She presented or attempted to present, the issue to the arbitrator. Clearly, the plaintiff committed the issue of her legal fees to arbitration. Fees under G.L.c. 151B, §9, is generally calculated on a lodestar basis…. The reasonableness of the fee ‘is largely discretionary with the judge.' … In this context, the fee for the entire course of proceedings should have been determined by the arbitrator, the person with the best vantage point for making the discretionary call.

For the above-stated reasons, it is ordered that those portions of the endorsement of the court dated October 4, 2002, that are inconsistent with today's decision be vacated, but that reconsideration of the order dated October 4, 2002, denying the plaintiff's Motion for Attorney's Fees, Interest, and Costs be denied.

Senna v. Professional Food Service Management, Inc (Lawyers Weekly No. 12-01903) (3 pages) (Nickerson, J.) (Plymouth Superior Court) Lisa M. MacKenzie for the plaintiff; David S. Katz for the defendant (Civil Action No. 99-949B).

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