Opinion
No. 09-P-441.
April 30, 2010.
By the Court (Cohen, Vuono Grainger, JJ.).
MEMORANDUM AND ORDER PURSUANT TO 1:28
The defendants, Cushman Wakefield of Massachusetts, Inc.
(C W), and Robert E. Griffin, Jr., appeal from a Superior Court judgment for the plaintiff, Richard F. Herlihy, on claims stemming from Herlihy's termination in December, 2004, from his employment at C W as a commercial real estate salesperson. Herlihy filed this action primarily to recover compensation for the latter half of 2004. C W counterclaimed for breach of Herlihy's employment contract and related misdeeds. After a jury-waived trial, C W was awarded nominal damages on its counterclaims, while Herlihy was awarded $304,833 in quantum meruit damages on his claim of unjust enrichment. We affirm.
Background. The facts relevant to this appeal are taken from the judge's comprehensive findings, which are fully supported in the record. C W is a Massachusetts corporation engaged in the real estate business. Herlihy, who has worked in the New England area as a licensed real estate salesperson since 1985, was employed at C W from 2001 to 2004. When he started working at C W, Herlihy signed an employment contract, which provided, among other things, that C W would pay the employee fifty percent of commissions paid by the customer on real estate transactions towards which the employee rendered services. The employment contract also permitted salespersons to agree among themselves to share commissions, with C W's approval, and it was pursuant to one such arrangement that Herlihy actually was compensated.
In particular, paragraph 3 of the employment contract stated in relevant part: '[C W] shall pay Employee and Employee accepts as his full and only compensation for all his services rendered, the percentage of the commissions and fees collected by [C W] on transactions in which Employee has rendered services, under the circumstances and as determined in accordance with the Schedule of Compensation annexed hereto and made part hereof. [C W] shall have the right to set off or recoup from the Employee's compensation any monies due [C W] from Employee pursuant to this Agreement . . . [C W] shall have the right, at any time, in its sole discretion to amend or modify the terms and conditions of the Schedule of Compensation, including the percentages of commissions and fees on future transactions . . . by giving one week's prior written notice of such amendment or modification to Employee.'
Throughout his employment at C W, Herlihy worked as part of a group of C W salespersons known as the Griffin team, headed by the defendant, Robert Griffin. Commissions paid by a customer to C W, for a real estate transaction in which Griffin team members were involved — be it Herlihy or others — were first split fifty-fifty between C W, on the one hand, and the Griffin team, on the other. Under the employment contract, the Griffin team was treated as a single employee for compensation purposes. The Griffin team pooled its half of the commissions split with C W, and then divided that amount among its members. As a result, when Herlihy worked on transactions for which commissions were paid to C W, C W paid fifty percent of those commissions to the Griffin team rather than to Herlihy individually.
The commission split with C W was adjusted according to certain variables, set out in a schedule of compensation that was attached to and made part of the employment contract. Of relevance here, the schedule of compensation provided incentives for employees to earn a greater percentage of commissions. By working as a team, Griffin team members achieved the increased percentages more quickly.
Under the fee-sharing arrangement of the Griffin team, Robert Griffin alone determined the amounts of the pooled commissions that would be allocated among each of the Griffin team members. He used no set formula and apportioned the commissions at his sole discretion. The fee-sharing arrangement was not documented in writing, nor was the process by which Robert Griffin determined the allocation of commissions among the team documented. Griffin team members were paid twice a year for their portion of the commissions earned by the team for the previous six months, rather than at the time each transaction closed.
As an advance against commissions, Herlihy and other Griffin team members received $50,000 a year, paid biweekly. Though documented as a loan from C W, Robert Griffin guaranteed those amounts.
Over the course of time, tension developed between Herlihy and other members of the Griffin team, and by early 2004, some in the team wanted Herlihy's employment terminated. Certain team members reported receiving customer complaints about Herlihy, including instances of missed meetings and failure to return telephone calls. In the meantime, Herlihy began a search for another job. On December 2, 2004, Robert Griffin met with Herlihy and gave him the option of resigning, transferring to another C W office, or being terminated. The following day, however, Robert Griffin discovered that in November, Herlihy had arranged for another Griffin team salesperson, Jeffrey Gates, to download two confidential Griffin team databases and have them burned onto a compact disc. Herlihy was immediately terminated.
C W and Robert Griffin refused to pay Herlihy any amount of the commissions earned by the Griffin team for the second half of 2004. Under the termination provisions of the employment contract, an employee was entitled to commission payment on a transaction for which a binding purchase and sales agreement was executed on or before termination. Herlihy filed this action to recover commission payments under the employment contract and his fee-sharing arrangement with the Griffin team. He also sought the fair value of his services in quantum meruit. C W counterclaimed for breach of contract, intentional interference with contractual relations, misappropriation of trade secrets, and breach of fiduciary duty.
Herlihy brought additional claims for violations of the Weekly Payment of Wages Act, G.L. c. 149, §§ 148 150, violation of c. 93A, and slander.
Following a two-week trial, the judge found in favor of C W on its counterclaims but found no monetary loss, awarding nominal damages in the amount of $1.00. The judge found against Herlihy on his claims for breach of contract, slander, and the statutory claims, but awarded damages in quantum meruit, based on unjust enrichment grounds. Relying on the testimony of Herlihy's expert, the judge found that the fair and reasonable value of Herlihy's services for the second half of 2004 was $304,833. She denied C W's request for an award of reasonable attorney's fees, which it sought as the prevailing party under the attorney's fees provision in the employment contract.
The judge awarded Herlihy quantum meruit damages based on the fair and reasonable value of his services in eight transactions for which binding purchase and sales agreements had been signed prior to his termination.
Discussion. 1. Quantum meruit. Where a claim for quantum meruit is based on unjust enrichment, the plaintiff seeks to recover for a benefit conferred on the defendant for which he reasonably expected payment. See Salamon v. Terra, 394 Mass. 857, 859 (1985). C W argues that quantum meruit recovery was not appropriate because: (1) Herlihy did not substantially perform the employment contract, (2) Herlihy breached the employment contract in bad faith, and (3) Herlihy's compensation was a matter covered by the employment contract. We address each claim in turn.
a. Substantial performance under the employment contract. 'The law in this Commonwealth is clear that one who in good faith substantially performs a contract may recover in quantum meruit.' J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 796 (1986). C W contends that because the judge made no explicit finding that Herlihy substantially performed his contractual obligations on the eight transactions for which the judge awarded quantum meruit damages, there was no basis for awarding quantum meruit damages.
The judge specifically found, however, that viewing 'the entire contract, what had been done, and what had been omitted,' ibid., Herlihy had met his burden of proving substantial performance with respect to the eight eligible transactions so as to entitle him to compensation. The judge also found that Herlihy's breach of contract did not interfere with the work he actually performed on those transactions.
The evidence supports these findings. We note, further, that the judge's findings that C W incurred no damages from Herlihy's breach of contract lend further support to her determination that Herlihy's misconduct did not interfere with his substantial performance, when viewed in its entirety. The judge properly could rely, as well, on evidence that full commissions were paid for the transactions on which Herlihy worked, in finding that Herlihy substantially performed the contractual requirements. On our review of the record, the judge did not err in so finding. C W's argument that the commissions were earned by the efforts of other Griffin team members was a credibility determination we leave to the judge. See Gossels v. Fleet Natl. Bank, 453 Mass. 366, 368 n. 9 (2009).
b. Alleged bad faith. C W next argues that the judge's finding that Herlihy materially breached the employment contract by breaching his duty of loyalty, misappropriating trade secrets, and exhibiting ill will in interfering with C W's contract with a another salesperson, amounted to bad faith on Herlihy's part, thereby precluding recovery in quantum meruit. But again, the judge reasoned that while Herlihy did not act in good faith at all times, Herlihy's lack of good faith in performing some aspects of his employment contract did not 'negate or infect the work Herlihy actually performed' towards earning commissions. The judge was entitled to credit Herlihy's evidence in this regard. See J.A. Sullivan Corp. v. Commonwealth, supra at 796 (quantum meruit recovery requires good faith in substantially performing the contract).
At the same time, the judge noted with disapproval C W's own refusal to pay Herlihy any compensation for his acknowledged contribution to the substantial commissions earned by the Griffin team in the latter half of 2004. In considering the equities, the judge properly could conclude that, despite instances of Herlihy's misconduct, Herlihy was entitled to recover the fair value of his services in quantum meruit.
According to the record, 2004 was the Griffin team's best year for earnings since starting at C W. Christopher Griffin, another Griffin team member, whose earnings had been roughly comparable to those of Herlihy at C W, was paid $700,000 in commissions for the second half of 2004.
See, e.g., Meehan v. Shaughnessy, 404 Mass. 419, 446-447 (1989) (despite removing cases from their former law firm, in breach of fiduciary duty, defendant attorneys were entitled to compensation for their services to avoid unjust windfall to plaintiffs). See also Salamon v. Terra, supra at 859 (importance of equity in quantum meruit recovery based on unjust enrichment). The result was not an abuse of the judge's discretion, as C W contends. As the judge noted, forfeiture of all commissions would be an 'extreme remedy' for the breaches committed here. Meehan v. Shaughnessy, supra at 439. The findings of ill will in Herlihy's conduct with Gates, or dereliction in keeping appointments towards the end of 2004, were not inconsistent with the judge's finding that Herlihy's misconduct did not affect the services he performed on the transactions for which quantum meruit recovery was allowed. Based on the judge's findings that C W suffered no damages as a result of Herlihy's misconduct, and that full commissions were paid by the customers on those transactions, we conclude that 'the plaintiff's breach was not so material that the defendant should receive a gift of the plaintiff's services.' Harness Tracks Sec., Inc. v. Bay State Raceway, Inc., 374 Mass. 362, 367 (1978). See Meehan v. Shaughnessy, supra at 439 (partner who breaches partnership agreement does not forfeit all accrued profits from the partnership, but only those losses that flowed from the breach).
C W also challenges the quantum meruit award on the ground that the existing employment contract governed Herlihy's compensation thereby precluding recovery in quantum meruit. Quantum meruit recovery on unjust enrichment grounds is based on an implied or quasi-contract, and where a contract already exists between the parties, '[t]he law will not imply a contract where there is an existing express contract covering the same subject matter.' Zarum v. Brass Mill Materials Corp., 334 Mass. 81, 85 (1956). Thus, where the provisions of the express contract address the disputed issue, recovery in quantum meruit is not warranted. MCI WorldCom Communications, Inc. v. Department of Telecommunications Energy, 442 Mass. 103, 116 (2004) (no quantum meruit recovery where provisions of express contract explicitly tied the method for determining compensated services to Federal agency's interpretation). Here, the judge found that the employment contract applied to commissions paid by C W to the Griffin team, but did not cover the disputed issue of Herlihy's share of those commissions. Compare Zarum v. Brass Mills Materials Corp., supra (contract would not be implied where comprehensive and carefully drawn contract covered the disputed subject matter of corporate tax refunds and set out the only conditions for payment to plaintiff).
The judge's interpretation of the employment contract, as failing to address Herlihy's individual compensation, comported with the contract's language and with the testimony of C W's own witnesses. See MCI Worldcom Communications., Inc. v. Department of Telecommunications Energy, supra at 112 ('To ascertain the intent of contracting parties, the court considers the words used by the parties, the agreement taken as a whole and the surrounding facts and circumstances'). The employment contract provided, in paragraph 3, for a fifty percent split of commissions between C W and the employee, the percentage adjusted according to the schedule of compensation incorporated therein. The testimony established that, with respect to commissions for transactions on which Griffin team members worked, the Griffin team was paid as a single employee under the contract, with commissions split fifty percent between C W, on the one hand, and the Griffin team, on the other. The record also confirmed that at no time was Herlihy paid the fifty percent commission split with C W, notwithstanding paragraph 3 of the employment contract. The judge specifically found that the Griffin team was the broker of record for compensation purposes, and that paragraph 3 of the employment contract 'does not govern commissions from Cushman Wakefield to Herlihy but from Cushman Wakefield to the Griffin Team.'
Thomas Collins, C W's executive managing director for the New England region, testified that the Griffin team was treated as a single broker, 'as if it were one person,' for commission purposes, under the contract. He further explained that the contract did not provide for the percentage of the commissions that Herlihy was to be paid for each transaction he worked on, but only provided for the fifty-fifty commission split between C W and the Griffin team.
C W points to language in paragraph 7 of the employment contract that afforded C W the sole discretion to determine whether a transaction was consummated by the employee's efforts and to determine the allocation of commissions where more than one C W employee contributed to a transaction. Read in the context of the entire employment contract and the undisputed testimony, it is apparent that paragraph 7 did not address commissions distributed within the Griffin team; it was undisputed that the Griffin team pooled their commissions, without regard to which member contributed to any given transaction, and that allocation was at Robert Griffin's sole discretion. The judge, rather, referred to the termination provisions of paragraph 9(b) of the contract, emphasizing, in particular, language that upon termination, the '[e]mployee's share of any commissions and fees collected by [C W] subsequent to the termination of Employees's employment shall be subject . . . to any commission or fee sharing arrangement made by Employee with any other [C W] employees.' The judge found that while the termination provisions identified the transactions for which Herlihy was entitled to compensation, they did not 'cover[] the subject matter of [the second half of this] dispute[,] namely Cushman Wakefield's actual compensation of Herlihy for those transaction.'
C W relied on the following language in paragraph 7: 'C W shall at all times have the sole and absolute right to determine the commission or fee to be charged to any customer and the sole discretion to decide whether any transaction on which Employee has been working is consummated in whole or in part by Employee's efforts. If any commissions or fees are determined to be due and C W personnel other than Employee contributed to or assisted in consummating any such transaction, whether such other personnel are employed on a salary or commission basis, Employee shall abide by and accept C W's decision with respect to the determination of the amount of and the allocation of Employee's share in the commission or fee.'
The testimony confirmed that, under Herlihy's fee-sharing arrangement with the Griffin team, compensation of Griffin team members was decided at the sole discretion of Robert Griffin. Robert Griffin, for his part, testified that he utilized no set formula in apportioning the commissions among Griffin team members, and that no written policy or other document existed that controlled his determination. Compare York v. Zurich Scudder Invs., Inc., 66 Mass. App.Ct. 610, 620 (2006) (quantum meruit recovery not available where parties acknowledged that an express contract covered the issue of plaintiff's compensation, but disputed which version of express contract terms governed the formula to determine plaintiff's incentive compensation). The judge reasoned that where C W conceded that Herlihy contributed some services towards the commissions earned in the latter half of 2004, and where the employment contract was silent as to the disputed issue of his individual compensation, payment should be implied in quantum meruit for those services. See Popponesset Beach Assn., Inc. v. Marchillo, 39 Mass. App.Ct. 586, 592 (1996) (the law implies a promise to pay the value of services where there was no evidence that plaintiff's services were being offered gratuitously).
Our cases do not permit recovery in quantum meruit, based on an implied or quasi-contract, where express provisions for payment were agreed to when the contract was made. See, e.g., Lucier v. Young, 338 Mass. 671, 673 (1959) (no recovery in quantum meruit where payment to broker had been promised in express terms); Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877, 883 (1982) (judge erred in awarding $28,000 in quantum meruit damages for the value of plaintiff's services where payment terms of the parties' express contract entitled plaintiff to $61,000). Here, however, neither the employment contract, nor its reference to fee-sharing arrangements, addressed the disputed issue of Herlihy's individual pay. We conclude that where the subject matter of Herlihy's individual compensation was left to the whim of one individual's discretion rather than to express contract provisions, the trial judge could imply fair and reasonable compensation on unjust enrichment grounds, so as to avoid a gift of Herlihy's services.
2. Expert witness. C W claims that the judge abused her discretion in qualifying Herlihy's expert, Robert Delaney, and in relying on his opinion of the value of Herlihy's services. 'The amount of recovery on a claim based in quantum meruit is the fair and reasonable value of material and labor supplied to the benefitting party.' J.A. Sullivan Corp. v. Commonwealth, 397 Mass. at 797. The judge credited Delaney's testimony in determining the fair and reasonable value of Herlihy's services for his contribution to transactions involving several properties prior to his termination. The fair and reasonable value of those services was a question of fact, which we do not disturb unless it is clearly erroneous. See Lattuca v. Robsham, 442 Mass. 205, 216 (2004).
'The crucial issue,' in determining whether a witness is qualified to give an expert opinion, 'is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony." McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 361-362 (1996), quoting from Letch v. Daniels, 401 Mass. 65, 68 (1987). The subject matter here was the fair and reasonable value of a salesperson's services in certain commercial real estate transactions in the greater Boston market in 2004. At the time of trial, according to the record, Delaney held a Massachusetts real estate broker's license and had twenty-two years of experience in the Massachusetts commercial real estate industry, including sixteen years as a partner, and thereby directly involved in salesperson compensation, in two Massachusetts real estate companies. He testified that he held a bachelor of arts degree from Williams College and a master's degree in real estate development from the Massachusetts Institute of Technology.
In qualifying a witness as an expert, 'the judge's 'ruling will be reversed on appeal only if it constituted an abuse of discretion or was otherwise tainted with error of law." McLaughlin v. Board of Selectmen of Amherst, supra at 362, quoting from Commonwealth v. Devlin, 365 Mass. 149, 152 (1974). C W's principal objection, that Delaney's experience was more in the area of commercial leasing than sales, does not persuade us that the judge abused her discretion in qualifying Delaney as an expert. C W's objection that this was Delaney's first time testifying as an expert witness went to the weight of his testimony and not to his qualifications to give it. See id. at 363.
As to Delaney's opinion regarding the value of Herlihy's work, C W argues that the judge failed to apply the specific factors set out in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-592 (1993), to establish the reliability of his testimony. The United States Supreme Court recognized in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151 (1999), however, that certain applications of an expert's methods may not be the subject of peer review in a given industry because of the lack of need or interest. 'Thus, whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.' Id. at 153.
C W argues that the judge should have considered the following factors from Daubert: whether the theory (1) has been subject to peer review and/or publication, (2) has been tested, (3) has a known error rate, and (4) has general acceptance in the scientific community. Id. at 593-594. See Palandjian v. Foster, 446 Mass. 100, 107 (2006) (applying Daubert factors to all expert testimony, whether scientific, technical, or otherwise).
The judge did not abuse that broad latitude here. To begin with, the evidence established that, in the relevant market, salespersons were compensated through commissions paid on the purchase and sale of commercial real estate. We see no questionable reliability in determining the fair and reasonable value of Herlihy's services by reference to the amount actually paid in commissions by C W customers on each transaction. See, e.g., Carlson v. Klauer, 329 Mass. 398, 400-401 (1952); Lucier v. Young, 338 Mass. at 673. See generally Lattuca v. Robsham, 442 Mass. at 215. Furthermore, the judge limited Delaney's opinion for the value of Herlihy's work to the eight transactions for which the employment contract entitled him to compensation upon termination. See generally Zabin v. Picciotto, 73 Mass. App.Ct. 141, 151 (2008), quoting from Liss v. Studeny, 450 Mass. 473, 480 (2008) ('While a party does not recover on the contract itself under quantum meruit, a court may look to the terms of the underlying contract to help determine appropriate recovery under quantum meruit').
The evidence also established that the methods for apportioning commissions among various salespersons involved in a given transaction varied from company to company and from contract to contract. As previously noted, within the Griffin team, Robert Griffin testified that he used no set formula to determine the apportionment of the commissions among its members. In these circumstances, the judge reasonably could conclude that a need for, or interest in, a widely-accepted methodology for assigning a fair and reasonable value to the services of real estate salespersons had not arisen in the industry. See, e.g. Kumho Tire Co. v. Carmichael, supra at 151.
The evidence indicated that the method for apportioning commissions among salespersons varied within C W itself. And even within the Griffin team, certain members worked as partners, sharing their commissions equally on any transaction that one of them worked on, even if the others played no part in it.
The judge, therefore, relied on Delaney's experience in the industry to divide the marketing services for a commercial real estate transaction into eight categories, and to assign a percentage to each service category, based on its value towards consummating the transaction and earning the commissions. Delaney then applied the service categories to the work Herlihy actually performed on each transaction, as described by Herlihy in his answers to interrogatories, to determine the fair and reasonable value of Herlihy's services towards the commissions earned by the Griffin team on each sale.
Delaney identified eight steps in the marketing process, and assigned a percentage of the amount of the commission paid to the Griffin team that should be assigned to each step: 25% for sourcing, 25% for pitching, 10% for valuation, 5% for packaging and positioning, 5% for sales calls, 10% for showings, 15% for negotiating the letter of intent, and 5% for the purchase and sale and due diligence.
C W complains that Delaney relied on Herlihy's description of his own services in determining what portions of the commissions were attributable to Herlihy's efforts. 'A person may testify as to the value of his own services.' Berish v. Bornstein, 437 Mass. 252, 273 (2002). By the same token, we think Herlihy was entitled to describe his own services and offer expert opinion as to the value of those services towards the commissions actually earned by the Griffin team on each transaction.
Given the evidence of the lack of a consistent approach in the greater Boston commercial real estate industry for apportioning commissions among salespersons involved in a particular transaction, it was a matter of the judge's broad discretion to admit Delaney's testimony without application of the Daubert factors as a measure of reliability. Kumho Tire Co. v. Carmichael, supra. Delaney's opinion of value was not based on 'junk science,' see Peterson v. Board of Assessors of Boston, 62 Mass. App.Ct. 428, 433 (2004), but rather on the amount of commissions actually paid by customers for the Griffin team's services on each transaction, and apportioned according to the services actually performed by Herlihy that contributed to those commissions. Delaney's methodology for assigning percentage values to those services was expressly accepted by the judge, based on Delaney's experience in the commercial real estate industry. See Palandjian v. Foster, 446 Mass. 100, 111 (2006). C W has not persuaded us that the judge abused her broad discretion in admitting the testimony.
The judge correctly ruled that C W's objections to Delaney's testimony and the information upon which he relied went to its weight, and not its admissibility. See Peterson v. Board of Assessors of Boston, supra. C W had the opportunity to challenge Delaney's methodology on cross-examination. Id. at 432-433. C W chose not to introduce evidence of the value of Herlihy's services through its own expert, and it was a matter of the judge's discretion to credit the uncontradicted evidence of value offered by Herlihy's expert. See Berish v. Bornstein, supra at 273.
3. Attorney's fees. C W, claiming to be the prevailing party, sought to recover its attorney's fees from Herlihy under the employment contract. The employment contract provided that 'in the event any legal action or proceeding is commended to interpret or enforce the terms of or obligations arising out of this Agreement, or to recover damages for the breach thereof, the party prevailing in any such action or proceeding shall be entitled to recover from the non-prevailing party all reasonable legal fees, costs and expenses incurred by the prevailing party.' The judge ruled that, in light of the mixed judgment, and under the broad language of the attorney's fees provision, both parties prevailed to some degree. See, e.g., Northern Assocs., Inc. v. Kiley, 57 Mass. App.Ct. 874, 879 (2003) (under contract provision for attorney's fees to prevailing party, fees could be awarded to both parties, allocated according to the individual contract claims on which they prevailed). She denied C W's request for an award of its reasonable attorney's fees, citing Herlihy's substantial recovery against C W, and the near impossibility of separating C W's fees between its contract and noncontract claims. She ordered that each party bear its own attorney's fees.
C W argues that Herlihy is the nonprevailing party for purposes of the contractual attorney's fees provision because his recovery in quantum meruit did not constitute a contract claim; hence, he did not prevail on his contract claims. The judge found that under the broad language of the attorney's fees provision, Herlihy's quantum meruit recovery arose out of C W's obligation to pay commissions under the contract, such that both parties were prevailing to some extent. See generally Loche v. Dean Witter Reynolds, Inc., 26 Mass. App.Ct. 296, 303-304 (1988). Our affirmance does not hinge on the point, however.
'We recognize that an award of attorney's fees is a highly discretionary matter usually left to the judge.' TAL Fin. Corp. v. CSC Consulting, Inc., 446 Mass. 422, 434 (2006). Given the broad language of the attorney's fee provision in the employment contract, the judge did not abuse that discretion in viewing both C W and Herlihy as prevailing parties. Id. at 433-434 (when reasonable attorney's fees to the prevailing party are called for under the parties' contract, the judge should consider what was reasonable in light of the results obtained and the conduct of the litigation).
We think the judge in this case properly could consider, in deciding what constituted a reasonable attorney's fees award, that C W recovered only nominal damages on its contract claims, while liable for a substantial monetary judgment to Herlihy in quantum meruit. We also note the judge's disapproving reference, in connection with Herlihy's quantum meruit award, to C W's refusal to pay any compensation to Herlihy and its adverse affect on the course of the litigation. In determining the amount of attorney's fees that would be reasonable in these circumstances, we conclude that the judge did not abuse her discretion in denying C W an award. See Lattuca v. Robsham, 442 Mass. at 211 (in denying attorney's fees, trial judge could consider party's conduct in contributing to the necessity and expense of litigation).
Judgment affirmed. Order dated April 29, 2008, denying defendants' motion for additional findings and to amend judgment, affirmed.