Opinion
No. 15–P–1633.
10-25-2016
Wayne SANTELLI'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Once again, we are presented with an appeal involving a fee dispute with Attorney James N. Ellis, Sr. We affirm.
“In the past five years alone, Ellis or his legal assistants (collectively, Ellis) have filed over one hundred and fifty workers' compensation appeals in this court.” Ellis v. Commissioner of the Dept. of Indus. Accs., 88 Mass.App.Ct. 381, 382 (2015). “Ellis's attorney's fees and expenses frequently have been the main subject in these appeals. In a series of these cases, Ellis has been sanctioned for filing frivolous appeals and, similarly, for presenting frivolous claims involving fees and expenses before the [D]epartment [of Industrial Accidents].”Id. at 382–383 (footnote omitted).
Background. On December 18, 2006, the underlying workers' compensation claim in this matter was resolved by a lump sum settlement in favor of the employee. A dispute over the division of attorney's fees arose between Attorneys James N. Ellis, Sr. and James Aven, both of whom had represented the employee. After Ellis had filed a third-party claim with the Department of Industrial Accidents (department), an order was filed stating that Aven was to receive $2,500 in attorney's fees and $427.82 in expenses. Ellis appealed and an evidentiary hearing was held. In a decision filed on September 23, 2008, an administrative judge (AJ) affirmed the amounts for attorney's fees and expenses Aven was to receive, found that Ellis had pursued frivolous and unsubstantiated claims in violation of G.L. c. 152, § 14(1), and, pursuant to § 14(1), ordered Ellis to pay “the whole cost of the proceeding, including the legal expenses and fees Attorney Aven incurred in the defense of [Ellis's] frivolous appeal.” The AJ directed Aven “to provide the [AJ], and Attorney Ellis, with a bill for the legal representation and for legal services rendered” by Aven's attorney in defending that “frivolous” appeal, which Aven did three days later. Ellis appealed. The reviewing board of the department (board) summarily affirmed the September 23, 2008, decision, and Ellis appealed. A different panel of this court affirmed the board's summary disposition in a memorandum and order pursuant to our rule 1:28. See Santelli's Case, 78 Mass.App.Ct. 1119 (2011).
Payment by Ellis of the § 14(1) penalties was not forthcoming, prompting Aven to file with the department a third-party claim against Ellis. The AJ, who filed the September 23, 2008, decision, issued an order of payment stating the amount Ellis owed Aven pursuant to § 14(1). Ellis appealed. A second AJ conducted an evidentiary hearing on the limited issue of the reasonableness of the § 14(1) amount sought by Aven's attorney. Claiming lack of jurisdiction, Ellis did not appear for the hearing. In a decision filed on January 23, 2015, the second AJ concluded that the § 14(1) amount requested by Aven's attorney was reasonable and dismissed the appeal with prejudice. The second AJ also found that, in the current action, Ellis again violated § 14(1) by pursuing a frivolous appeal from the order of payment, and, pursuant to § 14(1), ordered Ellis to pay for “the whole costs of the proceeding, including the legal expenses and fees” incurred by Aven.” Ellis appealed that decision to the board, which summarily affirmed. Ellis appeals.
Discussion. We need not dwell on the issues raised by Ellis, as they do not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (argument shall contain the appellant's contentions “and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on”). There is no merit to Ellis's argument that Aven's claim for payment under § 14(1) was barred by res judicata. The amount of attorney's fees and expenses incurred by Aven in connection with the administrative appeal was neither “litigated and determined” nor “essential to the decision” in the underlying action, because the AJ directed Aven to submit a “bill” following the filing of the decision. Heacock v. Heacock, 402 Mass. 21, 25 (1988).
Because the board summarily affirmed the AJ's decision, we review the AJ's findings and conclusions, Eady's Case, 72 Mass.App.Ct. 724, 725–726 (2008), and see no violation of “the standards set forth in G.L. c. 30A, § 14(7)(a )-(d ), (f ), and (g ).” Sikorski's Case, 455 Mass. 477, 479 (2009). Ellis failed to present a “fair question of law” regarding the second AJ's ability to consider Aven's claim, as Ellis presented no legal argument in support of his position that the claim was barred by re judicata. DiFronzo's Case, 459 Mass. 338, 343 (2011), quoting from Johnson's Case, 242 Mass. 489, 493 (1922). The second AJ was entitled to conclude that Ellis's appeal from the order of payment had no “plausibility,” ibid., quoting from Meley's Case, 219 Mass. 136, 139 (1914), where Ellis saw “no need ... to appear” at the hearing despite it being his appeal. The second AJ's findings regarding the reasonableness of the fees incurred by Aven are based upon her “assessments of credibility[ ] and determinations of the weight to be given the evidence[, which] are the exclusive function of the [AJ].” Pilon's Case, 69 Mass.App.Ct. 167, 169 (2007). There was no error.
Ellis did not appear at either of the two scheduled appearance dates to argue his motion to dismiss. That portion of LaRoche v. G & F Indus., Inc., 27 Mass. Workers' Comp. Rep. 51, 54 (2013), to which Ellis cited in one of his letters to the second AJ, merely defines the concepts of res judicata.
Aven has requested attorney's fees and costs in connection with this appeal. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). We agree that such an award is appropriate, because we conclude that Ellis's claims on appeal are frivolous and unsubstantiated. Absent citation to relevant case law or meaningful analysis, Ellis's challenge to yet another penalty under § 14 bore “not ‘a prayer of a chance.’ “ Tamber v. Desrochers, 45 Mass.App.Ct. 234, 237 (1998), quoting from Pires v. Commonwealth, 373 Mass. 829, 838 (1977). Once again, Ellis has expended significant judicial resources pursuing an appeal with “an egregious lack of merit.” Tamber, supra. Pursuant to Fabre v. Walton, 441 Mass. 9, 10–11 (2004), Aven is to file with this court, and serve on Ellis, his application and supporting affidavit detailing his appellate attorney's fees and costs within fourteen days of the date of the rescript. Ellis may, within fourteen days thereafter, file with this court, and serve on Aven, any opposition to the amounts requested.
See, e.g., Ellis v. Department of Indus. Accs., 463 Mass. 541, 543–546 (2012) (referencing two workers' compensation cases); Kendrick's Case, 76 Mass.App.Ct. 1129 (2010) ; Continental Ins. Co. v. Ellis, 82 Mass.App.Ct. 1101 (2012) ; Olivenza's Case, 87 Mass.App.Ct. 1130 (2015) ; Rivera's Case, 87 Mass.App.Ct. 1134 (2015).