Fabre v walton Atorneys Fees on Appeal by HC12021009291


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                                  441 Mass. 9, *; 802 N.E.2d 1030, **;
                                      2004 Mass. LEXIS 39, ***

                                        1 of 3 DOCUMENTS

                            SEAN FABRE vs. AMALIA WALTON.



                        441 Mass. 9; 802 N.E.2d 1030; 2004 Mass. LEXIS 39

                                     January 5, 2004, Argued
                                    February 9, 2004, Decided

SUBSEQUENT HISTORY:               [***1]      As      OPINIONBY: GREANEY
Corrected February 17, 2004.
                                                      OPINION: [*9] [**1031] GREANEY, J.
PRIOR HISTORY: Suffolk. Civil action                  Sean Fabre appeals from an order of a single
commenced in the Supreme Judicial Court for           justice of this court requiring Fabre to pay
the county of Suffolk on November 29, 2002.           Amalia Walton $ 56,510 in appellate attorney's
The case was heard by Cordy, J. Fabre v.              fees and costs. The single justice's order
Walton, 436 Mass. 517, 781 N.E.2d 780, 2002           followed the full court's determination that
Mass. LEXIS 917 (2002)                                Walton was entitled to fees and costs pursuant
                                                      to G. L. c. 231, § 59H (anti-SLAPP statute).
DISPOSITION: Judgment affirmed.                       See Fabre v. Walton, 436 Mass. 517, 525, 781
                                                      N.E.2d 780 (2002) (stating that "Walton may
                                                      apply to the single justice for an award of
HEADNOTES: Practice, Civil, Appeal,                   attorney's fees and costs in connection with the
Attorney's fees, Costs. Supreme Judicial Court,       appeal").
Appeal from order of single justice.
                                                      On appeal, Fabre does not challenge the
COUNSEL: John P. Fulginiti (Ann Wagner                amount of the appellate attorney's fees and
with him) for the defendant.                          costs the single justice required him to pay.
                                                      Rather, he challenges Walton's entitlement to
Bruce T. Macdonald for the plaintiff.                 such fees and costs. That issue, however,
                                                      already was determined by the full court when
JUDGES: Present: Marshall, C.J., Greaney,             it denied Fabre's [***2] petition for rehearing,
Ireland, Spina, Cowin, & Sosman, JJ.                  which                                     raised
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                                   441 Mass. 9, *; 802 N.E.2d 1030, **;
                                       2004 Mass. LEXIS 39, ***

 [*10] (for the first time) the same issues he         [***3] appeal -- from the decision of the single
presses here. Edgar v. Edgar, 406 Mass. 628,           justice to the full court -- either disputing the
630, 549 N.E.2d 1128 (1990) (where liability           amount of the award by the single justice or (in
for appellate attorney's fees was established in       some instances, but again the case here) to
original appeal, court need not reexamine issue        reargue the question of entitlement to an award,
in appeal from single justice's award of fees).        even though the court has previously directed
                                                       that, on application, an award be made. See,
Walton requests that we award her additional           e.g., Stowe v. Bologna, 417 Mass. 199, 200,
attorney's fees and costs related to this appeal.      629 N.E.2d 304 (1994); Edgar v. Edgar, supra.
We allow her request. Because this appeal is an        It is this portion of the process that we revise
extension of the original appeal, an award of          today.
appellate attorney's fees and costs is
appropriate here as well.                              In fee requests filed after the date of this
                                                       opinion, the determination as to whether, and in
 [**1032] In cases where a party seeks an              what amount, appellate attorney's fees are to be
award of appellate fees, he or she must make           awarded will no longer be a matter left solely to
that request in the brief. See Yorke Mgmt. v.          a single justice in the first instance. Henceforth,
Castro, 406 Mass. 17, 20, 546 N.E.2d 342               the Justices who heard and decided the appeal
(1989). We take this opportunity to announce a         will consider the supporting legal arguments
new procedure on the award of appellate                and documentation and set the specific amount
attorney's fees and costs. The practice in this        to be awarded. Thus, a party who prevails on
court until now has been for the court then to         appeal before this court is directed to file with
refer the application for fees and any                 the clerk of the court for the Commonwealth
supporting legal arguments and documentation           his or her submission detailing and supporting
to a single justice (usually the author of the         the attorney's fees and costs sought; the
court's opinion) to determine the amount of the        opposing party will be afforded a reasonable
award, where appropriate. See id. This practice        opportunity to respond to that submission; and
has often (as is the case here) led to another         [***4] the court will then enter an appropriate
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                                441 Mass. 9, *; 802 N.E.2d 1030, **;
                                    2004 Mass. LEXIS 39, ***

 [*11] order. n1 Any party aggrieved by the                justice, will be responsible for disposing
order may request reconsideration, and the                 of the request with an order setting a
court will act on that request as well.                    specific amount.

     n1 In many cases a hearing will be             Walton shall have the benefit of this new
     unnecessary. The court will base the           practice on her request for appellate attorney's
     order on the parties' respective written       fees and costs with respect to this appeal. She
     submissions. If a hearing is needed for        may file her application for fees and costs, with
     any reason, the court may refer the            any appropriate supporting materials, with the
     matter to a single justice in order to         clerk of the court for the Commonwealth within
     conduct the hearing and make an                fourteen days of the date of the rescript.
     appropriate recommendation to the
     quorum; the quorum, not the single             Judgment affirmed.
**********     Print Completed   **********

Time of Request:      August 28, 2006   09:33 AM EDT

Print Number:         1822:115423043
Number of Lines:      87
Number of Pages:

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