McLoughlin v. Disarro, 7 Mass. App. Ct. 853

McLoughlin v. Disarro

7 Mass. App. Ct. 853 | Mass. App. Ct. | 1979

This case is before us on the plaintiffs’ appeal from so much of an amended judgment of the Superior Court as fails to award counsel fees as required by G. L. c. 93A, § 9(4). Counsel requested such fees in the complaint, but the trial judge found (Mass.R.Civ.P. *85452[a], 365 Mass. 816 [1974]) that there was no evidence introduced at the trial on this point and awarded damages, interest, and costs to the plaintiffs but made no provision for counsel fees. Although this finding is not erroneous, because no such evidence was in fact offered, the judgment must be modified in light of Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 631 (1978). There the court upheld an award of counsel fees under § 9(4) "notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge.” The portions of the record before us do not afford a basis for determining the amount of counsel fees, but an evidentiary hearing is not necessary; the determination can be based upon the judge’s own observations of the relevant factors on this issue gained during the course of the trial. Heller v. Silverbranch Constr. Corp., 376 Mass. at 629-630. The case is remanded to the Superior Court for findings consistent with this opinion and for modification of the judgment to include an award of counsel fees to the plaintiffs.

The case was submitted on briefs. Mark J. Shaw for the plaintiffs. Stephen E. Woods for the defendants.

So ordered.