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15-P-1117                                              Appeals Court

 CENTRAL CEILINGS, INC.      vs. SUFFOLK CONSTRUCTION COMPANY, INC.
                                & others.1


                              No. 15-P-1117.

            Suffolk.      October 7, 2016. - March 29, 2017.

              Present:    Agnes, Maldonado, & Desmond, JJ.


Contract, Construction contract, Subcontractor, Damages.
     Damages, Breach of contract, Attorney's fees. Practice,
     Civil, Attorney's fees, Discovery.


     Civil action commenced in the Superior Court Department on
October 3, 2006.

     The case was heard by S. Jane Haggerty, J.; an award of
attorney's fees was entered by her; and a motion for
reconsideration was considered by Judith Fabricant, J.


     Joel Lewin (John P. Connelly also present) for the
defendants.
     Paul R. Mordarski (Thomas J. Fullam also present) for the
plaintiff.


     DESMOND, J.       After a jury-waived trial, a Superior Court

judge entered judgment awarding the plaintiff, Central Ceilings,

     1
       Fidelity and Deposit Company of Maryland, Safeco Insurance
Company of America, and XL Specialty Insurance Company.
                                                                     2


Inc. (Central), $321,315 on its breach of contract claim for

damages for loss of productivity incurred while acting as a

subcontractor for defendant Suffolk Construction Company, Inc.

(Suffolk), on a large construction project.    This case is before

us on cross appeals.

     Suffolk challenges the judgment,2 claiming, inter alia, that

Central's claim was barred by the "no-damages-for-delay" clause

in the subcontract between the parties, and that the judge erred

in ruling that Central had established its claim for damages by

the "total cost" method.   Suffolk further challenges the judge's

award of $471,682 in attorney's fees to Central, claiming that

it was wrongfully denied discovery and a hearing prior to the

entry of that award.

     On its cross appeal, Central challenges the judge's holding

that the "pay-if-paid" clause in the subcontract barred it from

recovering $82,538 from Suffolk for unpaid change order requests

(CORs).   For the reasons set forth herein, the judgment on the

merits entered on December 20, 2013, and the amended judgment

for attorney's fees entered on September 9, 2014, are affirmed.

     1.   Background.   First, we set forth the basic material

facts, drawing extensively from the trial judge's thoughtful and


     2
       While this appeal is brought on behalf of all defendants,
other than Suffolk, the defendants are sureties and not
principal actors in the underlying events.
                                                                   3


thorough findings of fact, rulings of law, and decision.   The

Massachusetts State College Building Authority (MSCBA) hired

Suffolk to serve as general contractor on the construction of

three interconnected dormitories at what is now known as

Westfield State University (the project).   As the dormitories

were to be ready for occupancy by students arriving for the fall

semester in 2005, the contract between the MSCBA and Suffolk

(the general contract) provided for a substantial completion

date of July 1, 2005.   As an incentive for Suffolk to finish on

time, the general contract further provided that Suffolk could

either earn a $200,000 bonus for completing the project on time

or pay significant liquidated damages if it was not.3

     Central submitted a bid to serve as the subcontractor for

installing, among other things, the exterior heavy metal gauge

framing and sheathing, interior light gauge framing, drywall,

and hollow metal door frames.   Critical to Central's estimate

and ability to timely complete its work was the "flow" of the

project, with each aspect of its work following in sequence,

floor by floor, exterior to interior, building by building.




     3
       The liquidated damages clause provided for payment of
$30,000 for each week beyond July 15, 2005, up to September 2,
2005; $25,000 per additional day from September 3, 2005 to
October 2, 2005; and a $810,000 lump sum payment for failure to
complete the project by October 3, 2005.
                                                                   4


Suffolk accepted Central's bid, and the parties entered into a

subcontract in the original amount of $3,606,476.

     From the outset, however, the project was plagued by

problems as Suffolk failed to carry out many of its obligations,

including:   failing to coordinate the work of other "trades,"

such as the steel erector and window installer, whose work

necessarily had to be completed before Central could complete

its own; failing to establish proper elevation, column, and

control lines, from which Central worked to construct the

building in accordance with the plans; failing to provide for

the timely and properly coordinated delivery of the hollow metal

door frames to be installed by Central; and failing to ensure

that the buildings were weather-tight and properly heated, both

of which were essential to Central's ability to, among other

things, carry out the temperature-sensitive tasks related to the

installation of the gypsum wall board.4

     As Central encountered each obstacle and awaited

resolution, its workers, who had taken their tools and the

     4
       In addition, due to design defects, over 500 "requests for
information" (RFIs) were submitted to the architect over the
life of the project, with over 200 from Central alone. An RFI
is generated when a contractor or subcontractor encounters an
issue that is either inconsistent with, or not clearly addressed
by, the plans. The RFI seeks clarification and/or direction
from the architect, who responds with a "supplemental
information" (ASI) and often a sketch. The architect issued
over 200 ASIs on the project. The volume of RFIs and ASIs was
not only unusual for a project of this size, but of any size.
                                                                   5


necessary supplies and mobilized in a specific area to carry out

a specific task, were repeatedly forced to break down and

remobilize to a different area to carry out a different task.

Then, once the obstacle had been overcome, Central's workers

would have to do a "go back," remobilizing and completing the

original task.   Meanwhile, Central's project manager and other

supervisory personnel were forced to spend an inordinate amount

of time coordinating all of the changes and filling out related

paperwork.   The problems also resulted in Central's workers

being forced to work in the same space and at the same time as

other subcontractors, an inefficient situation commonly referred

to in the industry as the "stacking of trades."

    Given the substantial completion date, and the financial

incentives and disincentives related thereto, Suffolk advised

Central that no time extensions would be granted on the project.

As a result, while the start dates for various aspects of

Central's subcontract work were consistently pushed back due to

the myriad of issues caused by Suffolk's breaches, the

completion dates remained the same and the time within which

Central had to perform was constantly "compressed."     When

Central complained, Suffolk told it to simply assign additional

manpower to keep the project on track, which is what Central was

forced to do.    As such, even though the project was

substantially completed on time, to the financial benefit of
                                                                   6


Suffolk, the "flow" and productivity that Central had reasonably

counted on when calculating its bid for the project suffered

significantly.

     Central brought this suit for breach of contract and

quantum meruit claiming that Suffolk had not adequately managed

and coordinated the project, and that these deficiencies

resulted in damages for loss of productivity in the amount of

$321,315 and $82,538 in unpaid CORs.5   The judge specifically

found that Suffolk had breached the contract "(1) by failing to

coordinate erection of the steel; (2) by incorrectly

establishing the elevation, column, and control lines of

Building 2; (3) by failing to order the [hollow metal door

frames] and to coordinate delivery of the window and curtain

walls in a timely manner; (4) by failing to provide the

necessary climate for the interior work on the Project; and (5)

by making errors in design that affected the plumbing, the

heights and dimensions throughout the Project, the fan coil

units in each room, the shaft walls, the curtain walls, and the

pour stops."

     At trial, Central sought to establish its damages due to

this loss of productivity through the expert testimony of


     5
       The judge did not allow recovery for the unpaid CORs
which, as earlier noted, is the subject of Central's cross
appeal.
                                                                      7


Richard Broglino, an individual with substantial experience in

the construction industry.      Broglino opined that Central's loss

was best quantified through the impact it had on "manpower."       To

that end, he first reviewed Central's original estimate for

labor costs of $1,657,000 and determined that it was reasonably

accurate.     He then subtracted that figure, as well as amounts

that Central had already recovered for labor through change

orders, from the $2,310,526 in actual labor costs Central

incurred on the project, resulting in a net loss of $321,315 in

labor productivity.    The judge determined Broglino's testimony

was credible and awarded that amount to Central on its claims

for breach of contract.6

     2.   Standard of review.     On appeal from a jury-waived

trial, we review the trial judge's findings of fact for clear

error and review de novo her rulings on questions of law.        Trace

Constr., Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346,

351 (2011).

     3.   Suffolk's appeal.     a.   "No-damages-for-delay" clause.

Suffolk first argues that the award of damages, which was based

on Central's claim of loss of productivity, contravened the

following provision in the subcontract, often generically


     6
       Having ruled for Central on its contract claims, the judge
entered judgment for Suffolk and the surety defendants on
Central's alternative quantum meruit claims.
                                                                   8


referred to in the construction industry as a "no-damages-for-

delay" clause:

     "The Subcontractor agrees that it shall have no claim for
     money damages or additional compensation for delay no
     matter how caused, but for any delay or increase in the
     time required for performance of this Subcontract not due
     to the fault of the Subcontractor, the Subcontractor shall
     be entitled only to an extension of time for performance of
     its Work. Written notice of all claims for any extension
     of time shall be submitted to Contractor within ten (10)
     days of the date when Subcontractor knows (or should know)
     of the event which causes such delay, or such claim shall
     be considered waived by Subcontractor."

In Massachusetts, such a provision is, as a general proposition,

enforceable.     See, e.g., Worcester v. Granger Bros., 19 Mass.

App. Ct. 379, 388 (1985); B.J. Harland Elec. Co. v. Granger

Bros., 24 Mass. App. Ct. 506, 509 (1987).7    Here both parties

agree, and the judge determined, that the clause is unambiguous.

We concur.   Consequently, the no-damages-for-delay clause at

issue here must be interpreted and applied on its own terms.

See Siebe, Inc. v. Louis M. Gerson Co., 74 Mass. App. Ct. 544,

550 (2009) (parole or extrinsic evidence not admissible to

contradict or modify an unambiguous contract).     It was on the

basis of that clause's plain language that the judge ruled, for



     7
       At the same time, courts in various jurisdictions have
recognized a number of exceptions to the enforceability of such
clauses. See Tricon Kent Co. v. Lafarge N. Am., 186 P.3d 155,
160 (Colo. Ct. App. 2008) (noting that recognized exceptions
include instances of fraud, misrepresentation, bad faith, and
"active interference").
                                                                     9


two independent reasons, that it did not bar Central's claim.

Suffolk now challenges both reasons.

    i.    Deprivation of remedy.    The judge first determined the

no-damages-for-delay clause inapplicable because, even if

Central could be deemed to be seeking damages "for delay,"

Suffolk had deprived Central of its only remedy under that

clause by refusing to grant requested extensions of time for

performance.    Suffolk argues that this finding was clearly

erroneous because there was no evidence that Central ever

requested extensions of time.     This argument fails for at least

two reasons.

    First, we need not consider this argument because Suffolk,

by its own admission, never raised it in the trial court.      See

R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass.

66, 73-74 (2001) (an argument raised for the first time on

appeal need not be considered).     Suffolk, in response, argues

that it had no reason to make the argument earlier because the

issue of extensions of time arose only after the judge issued

her decision.    That suggestion, however, is belied by the

record.   Central's project manager testified that Suffolk had

made clear that no extensions of time would be granted, and

Central emphasized that point in its requests for findings of

fact and rulings of law.    The issue of the availability of time

extensions, therefore, was a live issue at trial, and Suffolk
                                                                   10


was required to raise any related arguments it had in that forum

to preserve them for appeal.8   This it failed to do.

     Second, even if we do consider Suffolk's argument, it fails

independently.   Not only was there evidence at trial that

Suffolk had made clear that no extensions of time would be

granted on the project, that evidence was undisputed.      Thus,

even though there was no evidence that Central requested

extensions of time in writing, the judge's ruling was not

clearly erroneous.   See Demoulas v. Demoulas Super Mkts., Inc.,

424 Mass. 501, 509 (1997) (finding is only "clearly erroneous"

if "reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed").   As noted above, Central's project manager

testified that Suffolk had communicated that no extensions of

time would be granted.   Suffolk did not dispute that evidence.

The evidence further established that Suffolk was financially

incentivized to avoid extensions of time by both the bonus

available to it for completing the project on schedule and the

liquidated damages it faced for failing to do so.   In short, the


     8
       Inexplicably, Suffolk states that it is not arguing that
Central, even if seeking damages covered by the no-damages-for-
delay clause, first has to establish that it requested and was
denied extensions of time. Suffolk's argument, therefore, seems
circular in nature (i.e., the judge erred in finding that
Central had satisfied a condition precedent that Suffolk
concedes did not need to be satisfied).
                                                                  11


only reasonable inference that could be drawn from the evidence

was that the possibility of extensions had been foreclosed by

Suffolk.   As such, we see no basis for disturbing the judge's

resulting conclusion that Suffolk had committed a material

breach by depriving Central of its sole contractual remedy,

thereby precluding Suffolk from invoking the no-damages-for-

delay clause as a bar to Central's claim for damages.    See Ward

v. American Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100

(1983) (a material breach by one party precludes it from

demanding performance by the other).9

     ii.   Nature of damages.   The judge also determined that the

no-damages-for-delay clause did not apply because Central was,

in fact, not seeking damages "for delay."      Suffolk now suggests

that finding was in error because Central was seeking damages

"caused by delays."   The suggestion, however, misapprehends both

the language of the no-damages-for-delay clause at issue and the

judge's ruling, which applied that language.

     9
       Suffolk suggests the judge erred by favorably comparing
this case to Farina Bros. v. Commonwealth, 357 Mass. 131, 138
(1970), because the fact finder in that case found that the
defendant acted in an unreasonable, arbitrary, and capricious
manner in denying the plaintiff-contractor extensions of time.
The judge's discussion of Farina, however, was not essential to
her finding. Moreover, it was implicit in her ruling, and the
record here supports a finding, that Suffolk, motivated by its
own financial interests, acted in an unreasonable, arbitrary,
and/or capricious manner by seeking to enforce a provision with
a limited remedy, while simultaneously imposing a blanket
prohibition against the remedy in that provision.
                                                                       12


    As the judge noted, courts have uniformly held that no-

damages-for-delay clauses must be strictly construed due to the

harsh effects they impose.    See, e.g., United States Steel Corp.

v. Missouri Pac. R.R. Co., 668 F.2d 435, 438 (8th Cir. 1982);

John E. Green Plumbing & Heating Co. v. Turner Constr. Co., 742

F.2d 965, 966 (6th Cir. 1984) (John E. Green Plumbing); Tricon

Kent Co. v. Lafarge N. Am., 186 P.3d 155, 159 (Colo. App. Ct.

2008).   The clause here provides, in pertinent part, that

Central "shall have no claim for money damages or additional

compensation for delay no matter how caused, but for any delay

or increase in the time required for performance of this

Subcontract not due to the fault of the Subcontractor, the

Subcontractor shall be entitled only to an extension of time for

performance of its Work"   (emphasis   added).   Strictly construing

this language, the judge found that Central was not seeking

damages because it had been delayed, but, rather, because it had

been forced to increase its workforce due to the compression of

the schedule occasioned by Suffolk's breaches of its

obligations.   As the judge further stated, "Suffolk's breaches

did not affect Central's ability to complete its work on time

. . . but, rather, with its ability to complete its work on

budget."

    According to Suffolk, the judge erred by defining "delay"

to be limited to "an idle workforce."      The argument, however,
                                                                     13


mischaracterizes the judge's findings.     It appears that she

found the reasoning of the Court of Appeals for the Sixth

Circuit in John E. Green Plumbing to be persuasive.     Although

the plaintiff-contractor did not ultimately prevail in that

case, the court held that the plaintiff-contractor's claim for

damages was not barred by the no-damages-for-delay clause

because it interpreted that specific clause's reference to delay

damages to mean damages for "the cost of an idle workforce."

Id. at 966. ("delay means time lost where work cannot be

performed because essential supplies have not been delivered or

necessary preliminary work has not been performed") (emphasis

added).    Ibid.   Notably, the clause in that case, which provided

that "[s]hould the Contractor be delayed in the commencement,

prosecution or completion of the work by the act, omission,

neglect or default of the Manager . . . then the Contractor

shall be entitled to an extension of time only[,]" was similar

in focus and scope to the one at issue here.     Id. at 966 n.1

(emphasis added).     As an initial matter, therefore, the judge's

favorable consideration of that case was well-grounded.

Further, the judge here was merely (and properly) interpreting

the no-damages-for-delay clause at issue.     Her ruling neither

seeks to impose, nor results in, a new, universally applicable

definition of "delay."10    In sum, we discern no basis for

     10
          Suffolk suggests the present case is controlled by
                                                                  14


disturbing either her interpretation of the clause at issue or

her related factual findings.

     b.   "Total cost" claim.   Suffolk next challenges the

judge's adoption of the "total cost" method for calculating

damages as advocated by Central's expert, Broglino.11     The total

cost method "looks to the difference between the amount bid for

the work and the actual cost of the work."    North Am.

Mechanical, Inc. v. Walsh Constr. Co., 132 F. Supp. 3d 1064,

1078 (E.D. Wis. 2015), citing Raytheon Co. v. White, 305 F.3d

1354, 1365 (Fed. Cir. 2002).    Due to several concerns, courts

have suggested that the method be used only "as a last resort

. . . , in those extraordinary circumstances where no other way

to compute damages was feasible and where the trial court

employed proper safeguards."    Servidone Constr. Corp. v. United




Reynolds Bros. v. Commonwealth, 412 Mass. 1 (1992), where the
court, in enforcing a no-damages-for-delay clause, found "no
significant distinction between the hindrances and interferences
to which Reynolds point[ed] and the alleged delay in the start
of the project and delays caused by the work of other
contractors." Id. at 7-8. Regardless of the language it chose
to describe its damages, however, the plaintiff in Reynolds
sought to recover for delay, not, as is the case here with
Central, the expense of having to increase its workforce to
avoid delay. In addition, the Commonwealth in Reynolds, unlike
Suffolk here, did not materially breach the no-damages-for-delay
clause, thereby precluding its own enforcement of that
provision. The present case, therefore, is distinguishable.
     11
       Suffolk also had a damages expert, but chose not to call
him as a witness at trial.
                                                                  15


States, 931 F.2d 860, 861-862 (Fed. Cir. 1991).12   Thus, a

plaintiff seeking to utilize the method "must prove that (1) the

nature of the particular losses make it impossible or highly

impracticable to determine them with a reasonable degree of

accuracy; (2) the plaintiff's bid or estimate was realistic; (3)

its actual costs were reasonable; and (4) it was not responsible

for the added expenses."13   Raytheon Co., 305 F.3d at 1366

(quotation omitted).   Although Suffolk does not challenge per se

the use of the total cost method, it nonetheless maintains that

the judge erred in finding that Central satisfied the first and

fourth elements.   We disagree.

     As to the first element, Broglino testified that the total

cost method was, in his opinion, the only method by which one

could calculate the loss of labor productivity in this case.    He

testified that he had considered use of the preferred "measured

mile" method for calculating such damages,14 but that the type of


     12
       No Massachusetts appellate court appears to have
addressed the use of the total cost method.
     13
       There is also a "modified total cost" method, which is
simply "the total cost method adjusted for any deficiencies in
the contractor's proof in satisfying the [four elements]."
Propellex Corp. v. Brownlee, 342 F.3d 1335, 1339 (Fed. Cir.
2003), citing Servidone, 931 F.2d. at 861-862. The elements are
the same for both methods. See Raytheon Co., 305 F.3d at 1365-
1366; Propellex, 342 F.3d at 1339.
     14
       "A measured mile analysis requires quantifying the time
it took [the subcontractor] to complete work in areas that were
'impacted' by conditions that caused it to be inefficient and
                                                                   16


detailed records necessary to do so did not exist, nor would

Central have been expected to maintain them.    The judge, as

indicated above, found Broglino's testimony credible, a finding

to which we defer.   See Demoulas, 424 Mass. at 509 (noting that

Mass.R.Civ.P. 52[a], 365 Mass. 816 [1974], "requires that 'due

regard shall be given to the opportunity of the trial court to

judge of the credibility of the witnesses'").    Nor do we see a

basis for disturbing her ruling, based on Broglino's testimony,

that the pervasive nature of Suffolk's breaches made it

impossible to identify an adequate baseline for assessing

damages on an event-by-event basis.15

     Meanwhile, the fourth element of the total cost analysis

attempts to address concerns of causation, requiring a plaintiff

to remove from the calculation any damages attributable to its



compare that with the time it took [the subcontractor] to
complete essentially identical work in areas that were
'unimpacted' by such conditions." North Am. Mechanical, 132 F.
Supp. 3d at 1079.
     15
       Suffolk suggests that Central proved it was possible
when, at Suffolk's suggestion, it initially submitted a request
for an equitable adjustment, documented ASI by individual ASI.
At the time, Suffolk and the MSCBA both rejected the request,
citing a purported lack of supporting documentation or
information. As an initial matter, therefore, it is telling
that Suffolk did not reject that request due to the no-damages-
for-delay clause. In any event, the judge was presented with
extensive evidence regarding that prior request and impliedly
found that it failed to adequately capture Central's damages,
and we see no grounds to conclude that such a finding was
clearly erroneous.
                                                                   17


own acts or omissions, or those of a third party for whom the

defendant is not responsible.     See Raytheon Co., 305 F.3d at

1366.     However, although Suffolk purports to object to the

judge's findings on the fourth element, as none of the alleged

deficiencies now cited by Suffolk concerns that element, there

is no basis for disturbing the judge's ruling in that regard.

     4.     Central's cross appeal.   In addition to seeking damages

for loss of productivity, Central sought to recover $83,538 from

Suffolk for unpaid CORs.     The judge rejected that claim,

determining that Central did not establish that Suffolk had been

paid for those amounts by the MSCBA, a condition precedent

contained in what is commonly referred to as the "pay if paid"

clause of the subcontract.16    While Central suggests that such

clauses are looked upon with disfavor, it does not maintain that

the clause is unenforceable.     Instead, it argues that the

judge's finding was clearly erroneous because (1) some of the

unpaid CORs were owed directly by Suffolk and not the MSCBA as

"pass through" expenses and (2) Suffolk had in fact been paid

     16
          The clause provides, in pertinent part:

     "Within ten (10) days after Contractor's receipt of good
     funds from Owner, Contractor shall pay to Subcontractor
     ninety percent (90%) of the value of the Work properly
     performed during the previous month. Receipt of progress
     and/or final payments by the Contractor from the Owner with
     respect to the Work shall be, in each instance, a condition
     precedent to the Subcontractor's rights to receive payment
     from Contractor."
                                                                   18


for some of the CORs by the MSCBA.    At trial, however, Central

only offered the subject CORs and testimony to the effect that

it had not received payment for them.     The record, therefore, is

insufficient to substantiate Central's arguments, never mind a

conclusion that the judge erred in her findings.

     5.   Attorney's fees.   The judge's awarded Central $471,682

in attorney's fees pursuant to G. L. c. 149,§ 29.     Suffolk

claims that it was wrongfully denied discovery prior to the

entry of that award.   "In general, discovery matters are

committed to the sound discretion of the trial judge [and will

be upheld] unless the appellant can demonstrate an abuse of

discretion that resulted in prejudicial error."     Buster v.

George W. Moore, Inc., 438 Mass. 635, 653 (2003).     The discovery

Suffolk sought here focused on whether Central had been billed,

and had paid, the fees it was seeking to recover.17    The

reasonableness of an application for attorney's fees, however,

does not turn on whether the fees requested were billed for

and/or paid, "but, rather, on what [the attorney's] services

were objectively worth."     Heller v. Silverbranch Constr. Corp.,

376 Mass. 621, 629 (1978).    Given that the discovery requested

was not essential to the ultimate issue to be decided, it was


     17
       Central sought $622,300 in attorney’s fees and $24,628.94
in disbursements. The judge reduced the fees by twenty-five
percent and declined to award any amount for disbursements.
                                                                   19


not an abuse of discretion to deny it.   Additionally, the judge

was aware of the discovery Suffolk was seeking and that Central

had not submitted any legal invoices or evidence of payment in

support of its fee application.   The issue Suffolk sought to

raise, therefore, was before the court for consideration.

Consequently, even if the denial of the discovery amounted to an

abuse of discretion, Suffolk was not prejudiced thereby.

     Suffolk further claims that the judge erred by declining to

hold a hearing on the fee application.   A party typically is

entitled to a hearing regarding the reasonableness of an

attorney's fee request, but only if it requests one.    See

Manganaro Drywall, Inc. v. White Constr. Co., 372 Mass. 661, 666

(1977).   The only reference Suffolk made to a hearing was buried

in the conclusion of its seventeen-page opposition to the fee

application, and even that did not amount to a "request" for a

hearing.18   A hearing, therefore, was not required.   Moreover,

Suffolk submitted a lengthy opposition to the fee application,

and the judge's decision awarding the fees reflects that she not

only considered Suffolk's objections, she adopted some of them.19


     18
       The judge intimated in an order establishing the
procedure for the fee application that a hearing would be held.
Nonetheless, Suffolk still should have requested a hearing if it
intended to insist on one.
     19
       Suffolk filed a motion for reconsideration of both the
fee award and denial of discovery, which was reviewed and denied
by a second Superior Court judge due to the trial judge's
                                                                  20


Indeed, Suffolk has not identified any objection that it was

prevented from raising as a result of the absence of a hearing.

Accordingly, Suffolk has not established that it was prejudiced

thereby.20

     Central's entitlement to attorney's fees, which arises from

G. L. c. 149, § 29, extends to the appellate process. See

Manganaro Drywall, 372 Mass. at 667.     Central has included a

request for such fees in its brief.    If the parties cannot agree

upon an appropriate amount of fees, they shall follow the

process prescribed in Fabre v. Walton, 441 Mass. 9, 10–11

(2004).   Central shall submit its request to this court, with

supporting materials, within fourteen days of the date of the

rescript.    Suffolk and the surety defendants shall submit any

opposition within ten days thereafter.

                                    Judgment and amended judgment
                                      for attorney's fees
                                      affirmed.




retirement. The second judge found that the trial judge "gave
full and careful consideration to each of the issues [Suffolk]
presented." We agree.
     20
       To the extent the parties raise other issues in their
briefs, they have not been overlooked. "We find nothing in them
that requires discussion." Commonwealth v. Domanski, 332 Mass.
66, 78 (1954).
