NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-604

TRAVERS/DOMBROSKI PC

vs.

KIMBERLEAH COLLINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, a law firm, brought this action for breach 

of contract against the defendant, its former client, alleging 

nonpayment of fees and costs in connection with the plaintiff's 

representation of the defendant in a Probate and Family Court 

case. After a jury-waived trial in Superior Court, the judge 

awarded the plaintiff $34,555 in damages, plus interest, costs,

and fees.1 The defendant appeals arguing that: the bill for 

legal services was grossly excessive; the judge's factual 

findings erroneously relied on the testimony of the plaintiff's 

sole witness; the plaintiff breached the contract, excusing her

1 The court also ruled that the defendant failed to 

establish her counterclaim for unfair or deceptive conduct in 

violation of G. L. c. 93A.
2

from performance; and the ruling was tainted by the judge's 

improper bias. We affirm the judgment.

Discussion. 1. Grossly excessive fees. Neither party 

disputes the valid formation of the contract for legal services. 

Notwithstanding, the defendant maintains that the hourly fee 

charged by her principal lawyer, Attorney Dombroski, was 

excessive, in part because the bill, in hindsight, was costlier 

than the benefit the firm was able to secure in her child 

support case. She also argues that the firm performed 

unnecessary work and did not prove that it performed the work it 

claimed.

The contract provided for an hourly rate of $325 for 

Dombroski's work. "[C]ontracts are to be construed 'according 

to the fair and reasonable meaning of the words in which the 

agreement of the parties is expressed.'" Cody v. Connecticut 

Gen. Life Ins. Co., 387 Mass. 142, 146 (1982), quoting MacArthur

v. Massachusetts Hosp. Serv., Inc., 343 Mass. 670, 672 (1962). 

See also Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. 

App. Ct. 726, 729 (1999) ("Contracts that are free from 

ambiguity must be interpreted according to their plain terms"). 

The defendant agreed to pay that rate, and while litigation can 

be expensive, nothing in the record demonstrates that 

Dombroski's hourly rate was unconscionable given his experience

and qualifications. See G. L. c. 106, § 2-302. Consequently, 
3

the judge did not err in reading the contract as written and 

requiring the defendant to meet her end of the bargain. See 

Waters v. Min Ltd., 412 Mass. 64, 67 n.3 (1992).

As to the defendant's claim that the firm billed her for

unnecessary work, the judge's finding that the plaintiff did not 

overbill, but rather performed the work at the client's demand, 

is well supported by the evidence presented at trial. See Judge 

Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of 

Developmental Servs., 492 Mass. 772, 799 (2023) (factual finding 

is not clearly erroneous when supported by record).

At trial, the defendant attempted to show that the firm did 

not perform the work detailed on the billing sheets documenting

labor contributed to her case. But the judge found that the 

plaintiff did in fact perform the work as charged,2 and, 

moreover, secured favorable results for the defendant. The 

judge also found that the defendant had knowledge of the fees 

the firm was generating as the litigation progressed. These 

findings accurately reflect the proof at trial and so are not 

clearly erroneous. See Demoulas v. Demoulas Super Mkts., Inc., 

424 Mass. 501, 509 (1997), quoting Building Inspector of 

Lancaster v. Sanderson, 372 Mass. 157, 160 (1977) ("A finding is 

2 To the extent minor discrepancies in the charges might 

have existed, the judge found that the defendant failed to raise 

them in the manner provided for in the contract.
4

'clearly erroneous' only when, 'although there is evidence to 

support it, the reviewing court on the entire evidence is left 

with the definite and firm conviction that a mistake has been 

committed'").

2. Dombroski's testimony. The defendant stresses that the 

judge improperly allowed Dombroski to testify about the work he 

performed under the contract and ignored the clear terms of the 

contract itself. The defendant further asserts that Dombroski's 

testimony was improper because it was hearsay.

It is true that "an unambiguous agreement must be enforced 

according to its terms." Schwanbeck v. Federal-Mogul Corp., 412 

Mass. 703, 706 (1992), citing Freelander v. G. & K. Realty 

Corp., 357 Mass. 512, 516 (1970). Here, the contract

unambiguously called for the defendant to pay an hourly rate,

but the question remained whether Dombroski had performed the 

work he billed out; consequently, his testimony about how he 

litigated the case was relevant to ascertaining if the plaintiff

complied with the contract's unambiguous terms. See Mass. G. 

Evid. §§ 401-402 (2024).

Dombroski's testimony based on his personal knowledge and 

recollection was properly admitted as statements of a percipient 

witness. See Mass. G. Evid. § 602 (2024). To the extent he 
5

testified about statements the defendant made to him,3 those 

statements were admissible as the statements of an opposing 

party and were not hearsay. See Mass. G. Evid. § 801(d)(2)(A)

(2024). Embedded in the defendant's opposition to the judge's 

reliance on Dombroski's testimony is the notion that it was 

unfair for the judge to credit his version of events and decline 

to accept the defendant's view of what took place. It is a 

judge's responsibility to hear conflicting evidence and 

determine which narrative is true. See E.K. v. S.C., 97 Mass. 

App. Ct. 403, 409 (2020), quoting Altomare v. Altomare, 77 Mass. 

App. Ct. 601, 602 (2010) ("A trial judge's findings of fact will 

not be set aside unless clearly erroneous"). Making credibility 

determinations is part and parcel of that responsibility. See 

Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012), 

quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) 

("In a bench trial credibility is 'quintessentially the domain 

of the trial judge [so that her] assessment is close to immune 

from reversal on appeal except on the most compelling of 

showings'").

3. Mutual breaches. The defendant argued at trial, and 

argues again here, that her nonpayment should be excused because 

3 The defendant agreed to waive attorney-client privilege, 

permitting Dombroski and the nondefendant witness to testify 

about conversations between them.
6

the plaintiff breached the contract by failing to supply monthly 

statements as provided for in the contract. The judge found, 

consistent with the record, that the plaintiff did provide bills 

on April 11, June 5, July 24, and September 5 of 2016, but that 

thereafter, the plaintiff agreed to withhold further bills until 

the end of the case and did not forward another bill until 

August 7, 2017.

The defendant correctly notes that the contract says 

modifications to the contract need to be in writing. The judge 

found that the term of the contract that required monthly 

billing was not a material term of the contract, which is a

factual finding to which we accord substantial deference. See 

EventMonitor, Inc. v. Leness, 473 Mass. 540, 546 (2016), citing 

Cetrone v. Paul Livoli, Inc., 337 Mass. 607, 610 (1958). Since 

the breach was not material, the defendant was not excused from 

performance, and still had to pay for the work her lawyer 

performed. See Lease-It, Inc. v. Massachusetts Port Auth., 33 

Mass. App. Ct. 391, 397 (1992).

Additionally, even though the contract says that it cannot 

be modified orally, the judge correctly found that the agreement 

not to provide monthly statements was undertaken in 

consideration of concessions regarding interest payments on the 

bills, and so was a valid oral modification of the contract, 
7

notwithstanding its terms. See Zlotnick v. McNamara, 301 Mass. 

224, 225-226 (1938).

4. Judicial recusal for bias. The defendant argues that 

the judge should have recused herself from the case because 

Dombroski was endorsed in a campaign for political office by the 

same Governor who appointed the judge. The defendant knew that 

Dombroski was running for a State Senate seat at the time of 

trial, and the information concerning the circumstances of the 

judge's appointment was readily knowable and publicly available. 

The argument could have been presented to the trial judge; 

because it was not, it is forfeited. See Adoption of Iliana, 96 

Mass. App. Ct. 397, 406 n.26 (2019) ("We generally do not 

consider a claim of bias raised for the first time on appeal").4

Judgment affirmed.

By the Court (Massing, 

Singh & Grant, JJ.5),

Clerk

Entered: July 1, 2024.

4 The plaintiff's request for an award of appellate 

attorney's fees is allowed. The defendant shall have fourteen 

days after the date of this decision in which to file a response 

to the request and supporting documentation submitted by the 

plaintiff as an addendum to its brief. See Fabre v. Walton, 441 

Mass. 9, 10-11 (2004).

5 The panelists are listed in order of seniority.