A court may award a request for reasonable attorney fees, costs, expenses, and interest under Mass. Gen. Laws ch. 231, §§ 6F and 6G.
The award is allowed if, after a separate hearing it is determined that all, or substantially all, of the claims, defenses, setoffs or counterclaims made by any party, who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith.
The award of reasonable attorney fees, costs, expenses, and interest requires specific findings of fact and reasons on which the findings are based. The award is limited to that amount reasonably necessary to defend against such claims. The intent is not to preclude the novel or the unusual claim or defense.
Separate Notice of Appeal Required
Challenging a trial court decision under Mass. Gen. Laws ch. 231, § 6F requires that a Notice of Appeal is filed for the fee award--even if the fee award is a part of a judgment also being appealed. The Notice of Appeal fee award must be separate and distinct from the Notice of Appeal filed for the underlying judgment!
The fee award Notice of Appeal must be filed within ten days of receipt of the notice of decision. Failure to follow this procedure will foreclose an appeal of the fee award before the a panel of the Massachusetts Appeals Court!
Appeal of a Mass. Gen. Laws ch. 231, § 6F Award
The appeal of an award made under Mass. Gen. Laws ch. 231, § 6F in the Superior Court, Land Court, Housing Court, or Probate Court proceeds to a Single Justice of the Massachusetts Appeals Court. No docketing fee is due in the Massachusetts Appeals Court for the attorney fee appeal.
The burden is on the parties, not the single justice, to ensure the record forwarded by the lower court is complete and that any additional relevant portions of the record be brought forward.
Automatic Stay of Execution During Appeal
Under Mass. Gen. Laws ch. 231, § 6F
The payment of any award made pursuant to Mass. Gen. Laws ch. 231, § 6F is stayed until the completion of all appeals relating to the underlying civil action for which the award was made.
The Appeal is a Fresh Review
A review of the findings and award, if any, appealed from is performed based upon the submitted materials as if it was being initially decided (i.e., de novo). If a hearing is permitted, it will only be at the discretion of the single justice.
The single justice need not make independent determination of the facts. The initial review will typically be based upon the findings of fact and reasons of the lower court judge. The facts as found by the trial judge are upheld unless they are without basis.
Disposition of the Attorney Fee Award on Appeal
When a motion for attorney fees, costs, expenses, and interest was previously denied, the single justice can allow the motion as filed in the lower court.
When a motion for attorney fees, costs, expenses, and interest was previously allowed, the single justice can withdraw or amend any finding of the lower court or reduce or rescind any award.
Further Appellate Panel Review
Under Mass. Gen. Laws ch. 231, ยง 6G
The decision of a single justice may be reviewed by a panel of the Massachusetts Appeals Court, only as to errors of law, and may be the subject of further appellate review. The fee award continues to be stayed while the appeal for further review is in progress.
If the underlying judgment resulting in the award of attorney fees, costs, expenses, and interest is on appeal then the single justice review is stayed pending the release of the appellate decision in the underlying case. At that time the § 6G appeal proceeds; the single justice will consider the panel's decision of the underlying judgment as well as the trial court findings. The single justice's decision tracks the form of an appellate decision by either affirming or reversing, in part or whole.
Contact Civil Appeal Attorney William M. Driscoll
Contact civil appeal Attorney William Driscoll for a free telephone consultation. Your time for filing a Notice of Appeal is limited!
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