VMS REALTY INVESTMENT, LTD. & another vs. WILLIAM R. KEEZER & others.

VMS REALTY INVESTMENT, LTD. & another vs. WILLIAM R. KEEZER & others. [Note 1]

34 Mass. App. Ct. 119

January 22, 1993 - February 4, 1993

Norfolk County

Present: BROWN, GILLERMAN, & GREENBERG, JJ.

Where an appeal was totally lacking in merit, the prevailing parties were entitled to seek an award of their appellate attorney's fees in the manner prescribed by the Supreme Judicial Court in Yorke Mgmt. v. Castro, 406 Mass. 17 , 18-20 (1989). [119-120]

CIVIL ACTION commenced in the Superior Court Department on August 9, 1988.

The case was heard by Roger J. Donahue, J.

Henry A. Brown for the defendants.

Alan R. Hoffman, for the plaintiffs, was present but did not argue.

BROWN, J. This is an appeal from a judgment in favor of the plaintiffs entered after a jury-waived trial in the Superior Court. Simply stated, the plaintiffs are holders of certain notes guaranteed by the defendants. The linchpin of the defendants' argument on appeal is a claim of fraudulent inducement. The appeal is totally lacking in merit and counsel for the defendants (appellants) had to be aware that the appeal was foredoomed for the reason, if no other, that they failed to allege fraud affirmatively, let alone with the requisite particularity, in the pleadings. See Mass.R.Civ.P. 8(c),

Page 120

365 Mass. 750 (1974), and Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974).

We would look with favor on a request, made in the manner prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17 , 18-20 (1989), for reasonable attorney's fees for this appeal, payable by defendants' appellate counsel to the plaintiffs. See also Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979). The plaintiffs may submit such a petition for attorney's fees to this court in the manner prescribed in Yorke Mgmt., supra at 20, as soon as practicable. The defendants are to have twenty calendar days from the date of said filing to respond.

Judgment affirmed, with double costs of the appeal.

FOOTNOTES

[Note 1] The judgment was entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), against William R. Keezer, George S. Lechter, and Robert A. Keezer. The complaint also named as additional defendants Lechter and William R. Keezer, as trustees of NVC Realty Trust, and Northeast Realty Company.