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16-P-308                                              Appeals Court

   W. NANCY BRADY, executrix,1 & another2 vs.      CITIZENS UNION
                    SAVINGS BANK3 & another.4


                              No. 16-P-308.

           Bristol.       December 6, 2016. - March 9, 2017.

               Present:    Green, Agnes, & Desmond, JJ.


Probate Court, Attorney's fees, Trust. Trust, Attorney's fees.
     Executor and Administrator, Attorney's fees. Practice,
     Civil, Attorney's fees.



     Complaint in equity filed in the Bristol Division of the
Probate and Family Court Department on July 13, 2011.

     Following review by this court, 88 Mass. App. Ct. 416
(2015), an award of attorney's fees, costs, and compensation for
professional services was entered by Virginia M. Ward, J.


     Carol L. Ricker for Dale Eggers.
     Edwin F. Landers, Jr., for W. Nancy Brady.

     1
         Of the estate of Thomas T. Brady.
     2
       Edwin J. Haznar, Jr., executor of the estate of Edwin J.
Haznar.
     3
       The complaint names the bank in its capacity as bailee of
the assets of the Wilson O. Smith Trust.
     4
         Dale Eggers.
                                                                   2


     Ben N. Dunlap for Edwin J. Haznar, Jr.


     GREEN, J.   On remand following our decision in a previous

appeal in this case, see Brady v. Citizens Union Sav. Bank, 88

Mass. App. Ct. 416 (2015) (Brady I), the Probate and Family

Court judge entered a thorough and detailed written memorandum

of decision, in which she reduced from $457,902.09 to

$350,680.805 the amount the plaintiffs could recover as

reimbursement for fees and costs their decedents incurred in

defense of a lawsuit brought against them by the defendant Dale

Eggers and her daughter.   Eggers has again appealed, contending

that (1) the amount of fees is unreasonable in light of the

nature and complexity of the underlying litigation; (2) the

amount of fees represents an unreasonable proportion of the

value of assets held by the Wilson O. Smith Trust (trust); and

(3) the judge failed adequately to consider the availability of

insurance proceeds as an alternative source of reimbursement.

We affirm, addressing Eggers's arguments in turn.6


     5
       The total consists of (1) $169,986.26 in legal fees
incurred by Thomas T. Brady; (2) $161,230.94 in legal fees
incurred by Edwin J. Haznar; (3) $5,400.00 in compensation for
professional accounting services performed by Edwin J. Haznar;
and (4) $14,063.60 in compensation for professional legal
services performed by Thomas T. Brady.
     6
       Eggers's separate contention that an award of attorney's
fees to the plaintiffs violates the so-called "American Rule"
ignores the language of the trust instrument explicitly
authorizing reimbursement of the trustees for expenses incurred
                                                                    3


    1.   Lodestar method.7   In determining the amount of a

reasonable fee, we consider "the nature of the case and the

issues presented, the time and labor required, the amount of

damages involved, the result obtained, the experience,

reputation and ability of the attorney, the usual price charged

for similar services by other attorneys in the same area, and

the amount of awards in similar cases."    Linthicum v.

Archambault, 379 Mass. 381, 388-389 (1979).    Determination of a

reasonable fee is in the first instance largely committed to the

sound discretion of the trial judge, who is in the best position

to evaluate the nature of the case, the conduct of the

litigation, the amount of time reasonably required to litigate

it, and the fair value of the attorney's services.    See Fontaine

v. Ebtec Corp., 415 Mass. 309, 324 (1993).    We review a trial

judge's determination of a reasonable attorney's fee for abuse

of discretion.    WHTR Real Estate Ltd. Partnership v. Venture

Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005).




in performance of their duties as trustees, as well as the fact
that this court's opinion in the previous appeal explicitly
recognized the propriety of an award of attorney's fees,
remanding only for reconsideration of the appropriate amount.
See Brady I, 88 Mass. App. Ct. at 422 & n.11.
    7
       The   "lodestar" method refers to the calculation of a
reasonable   attorney's fee by multiplying the number of hours
reasonably   spent on the case by a reasonable hourly rate. See
Stratos v.   Department of Pub. Welfare, 387 Mass. 312, 322
(1982).
                                                                    4


     We discern no abuse of discretion in the present case.     The

judge's written memorandum reflects that she reviewed the hourly

billing details carefully, and she excluded time she viewed as

duplicative or unnecessary.8   Though, as the judge acknowledged,

the underlying litigation ultimately involved no dispute of

material fact, the judge observed that the manner in which

Eggers prosecuted her claims caused the litigation to span four

and one-half years, during which she filed two amended

complaints reflecting evolving claims.   Ultimately, the summary

judgment rested on a conclusion that the claims were barred by

the statute of limitations, based on Eggers's knowledge in May,

2003, of the 1994 property transfer that formed the basis of her

December, 2006, complaint against the plaintiffs' decedents.

See Brady I, 88 Mass. App. Ct. at 417.   Eggers's knowledge was

demonstrated by a letter she withheld until February 3, 2010,

more than three years after she filed her initial complaint.

The judge also evaluated the hourly rates charged by the various

attorneys involved, and we discern no abuse of discretion in her

determination that the rates are reasonable.



     8
       The judge excluded time spent, for example, by Haznar's
attorney attending the deposition of Brady, and by Brady's
attorney attending the deposition of Haznar. The judge also
excluded time for which inadequate descriptions appeared on the
billing statements, including instances where descriptions
appear to have been redacted for reasons of attorney-client
privilege.
                                                                     5


    2.   Size of the estate.    Eggers separately contends that,

even if the hourly rate and time spent are considered reasonable

under the lodestar method, the resulting fee award is excessive

in relation to the size of the trust estate.     To be sure, "[a]n

important factor in assessing the reasonableness of fees awarded

in probate cases is the size of the estate."     Clymer v. Mayo,

393 Mass. 754, 772 (1985).     Accordingly, in assessing a request

for an award of attorney's fees in such cases the judge is to

"take into consideration . . . the amount in controversy, and

. . . prevent the fund from being either entirely or in great

part absorbed by counsel fees," and apply "strictly conservative

principles."   Id. at 772-773, quoting from Frost v. Belmont, 6

Allen 152, 165 (1863), and Holyoke Natl. Bank v. Wilson, 350

Mass. 223, 230 (1966).   The rationale stems, at least in part,

from a recognition that "[a]n excessive fee award may itself

defeat the decedent's intent by depleting her estate," Clymer,

supra at 773, and that such fees might be paid for the services

of those "who may not have been employed by those whose estates

are thus diminished."    Ibid., quoting from Holyoke Natl. Bank,

supra.

    The fee award in the present case approximates forty-five

percent of the value of the trust assets, as of the time of the
                                                                      6


fee request.9   While that is a substantial share, several factors

combine to persuade us that the judge did not abuse her

discretion in concluding that the fee award did not unduly

dissipate the trust.     First, the fees were incurred in defense

of litigation initiated by the trust beneficiaries against the

trustees, rather than in ordinary administration of the trust.

Compare Keville v. McKeever, 42 Mass. App. Ct. 140, 156 (1997),

with Clymer v. Mayo, supra.     In addition, we note that the

trustees were either appointed by Wilson O. Smith, the trust

settlor (as Brady was), or identified in the trust instrument as

a successor trustee to Smith upon his death or disability (as

Haznar was).    Accordingly, both trustees were employed by the

trust settlor for their services as trustees.     Contrast Clymer

v. Mayo, supra.     Moreover, the trust instrument itself expressly

authorized payment of professional fees in carrying out the

trustees' duties.     Finally, if reimbursement for otherwise

reasonable fees incurred in defense of litigation brought by

trust beneficiaries against the trustees were capped at a set

percentage of trust assets, trustees would be without effective

protection against claims brought against them in circumstances

     9
       The fee petition was filed on July 13, 2011. The only
evidence of the value of the trust appearing in the record
discloses that it had a value of $778,645.84 as of February,
2011. See Brady I, 88 Mass. App. Ct. at 418. In her written
memorandum of decision, the judge found that the award
represented less than fifty percent of the trust assets, and her
finding is not clearly erroneous.
                                                                      7


in which trust assets are small in comparison to the costs of

defense, and would accordingly (and reasonably) be reluctant to

serve as trustees.   Particularly in circumstances such as those

in the present case, where the claims were resolved in the

trustees' favor on undisputed facts, we see no reason why a

particular set percentage of trust assets should serve as an

absolute cap on the amount of a reasonable fee incurred in

defense of litigation.   Instead, as we observed in Brady I, a

comparison of the amount of the fee award to the value of trust

assets is but one factor to be weighed by the judge in

evaluating the reasonableness of the fee.     See 88 Mass. App. Ct.

at 419.

    3.    Collateral sources.    In Brady I, we explained that the

availability of collateral sources (such as insurance coverage)

for recovery of fees incurred in defense of litigation is not a

bar to recovery of such fees from the trust.     See 88 Mass. App.

Ct. at 420-422.   Instead, "insurance coverage is yet another

factor the judge should consider on remand in awarding fees and

costs in her discretion as justice and equity may require."       Id.

at 420 (quotation omitted).     In this appeal, Eggers contends

that the judge abused her discretion in declining to reduce the

fee award to any extent based on the availability of insurance

as a collateral source of recovery.     In particular, Eggers cites

as error the judge's explanation that permitting recovery of
                                                                      8


fees from trust assets without regard to collateral sources

would serve a salutary deterrent effect, analogous to the

deterrent effect cited in support of the collateral source rule

in tort cases.    Again, we discern no abuse of discretion.

    In her memorandum of decision, the judge expressed her view

that the underlying litigation was "without merit or vexatious

or both," and that "an offset of Eggers'[s] culpability by the

plaintiff[s'] insurance proceeds would seem patently unfair and

inequitable."    As Eggers recognizes, the purpose of the

collateral source rule is deterrence of tortious conduct.       See

Law v. Griffith, 457 Mass. 349, 355-356 (2010).    Though Eggers

protests that she prosecuted her claims against the trustees in

good faith, the judge considered her prosecution of the

litigation to be vexatious.    In particular, as the judge

observed, Eggers was aware early in the litigation that her

claims were barred by the statute of limitations, yet did not

disclose until quite far into the litigation the facts that

barred her claim on that ground.    In the circumstances, the

judge was within her discretion to view Eggers as "culpable" for

needlessly prolonging the litigation, thereby causing the

trustees to incur significant unnecessary fees in defending it,

and to decline to offset the fees paid from the trust by

proceeds of insurance available to the trustees in order to
                                                                    9


avoid an inequitable "windfall" to Eggers.     See Northern Assocs.

v. Kiley, 57 Mass. App. Ct. 874, 883 (2003).

    4.     Appellate attorney's fees.   Haznar has requested, and

is entitled to appellate attorney's fees and costs.     He may

submit a petition for fees and costs, together with supporting

materials, within fourteen days of the date of the rescript of

this decision.   Eggers shall have fourteen days thereafter to

respond.   See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).10

                                     Amended decree awarding fees
                                       and costs affirmed.




    10
       Although Brady also prevailed in this appeal, she did not
include a request for appellate attorney's fees and costs in her
brief, and we therefore do not award them. See Beal Bank, SSB
v. Eurich, 448 Mass. 9, 12 (2006).
