Central Ceilings, Inc. v. Suffolk Construction Co., Inc. ( 2017 )

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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).