HAROLD J. COHEN vs. C. KEEFE HURLEY & another, [Note 1] trustees.

KAPLAN, J. Harold J. Cohen, formerly president of the Old Silver Beach Village Association, had long been at loggerheads with C. Keefe Hurley, a trustee and the leading spirit of Old Silver Beach Trust, over the private and general responsibilities of landowners in and about Old Silver Beach Village, and over the problems of conservation and development of the area. On May 18, 1982, after public hearings in which Cohen and others made known their doubts, the planning board of Falmouth approved under G. L. c. 41, Section 81U, a major re-subdivision proposal by the trust. Because of shortness of time in which to arrange for a number of landowners to lodge an "appeal" pursuant to G. L. c. 41, Section 81BB, Cohen (as he testified) undertook to do so as an individual "person aggrieved." Such an action goes against the planning board, but, as might be expected, the trust, as protagonist of the subdivision project, intervened as a party defendant. It answered Cohen's amended complaint and, in addition, counterclaimed against him on grounds of abuse of process in bringing the Section 81BB action. The main action was speedily tried (see G. L. c. 231, Section 59A) and resulted in a complete vindication of the planning board's decision and correspondingly of the position of the trust. Cohen's grounds of complaint were either withdrawn by him in the course of the proceedings or failed of proof. As one of his "rulings of law" the trial judge wrote, "The plaintiff has failed to prove by any credible evidence any of the allegations that he has specified . . . ." Cohen noticed an appeal to this court from the ensuing judgment, but he later abandoned it.

Now followed two attempts to make Cohen pay for his indiscretion in opposing the trust.

1. The trust moved under G. L. c. 231, Section 6F, to compel Cohen to reimburse it for its reasonable counsel fees, expenses, and costs in defending Cohen's action. The motion was heard at some length. Tracking the requirement of the statute, the judge concluded (referring back to his findings in the main action) that "Cohen's claims were wholly insubstantial, frivolous, and not advanced in good faith." Of the trust's submitted

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bills totaling $56,338.07 (of which $53,501.50 was for counsel fees and $2,836.57 for expenses) the judge allowed $20,134.05.

From the order of award, Cohen appealed to a single justice of this court, and the trust cross appealed. See G. L. c. 231, Section 6G, inserted by St. 1976, c. 233, Section 1. After hearing, the single justice, holding for the trust, modified the order appealed from by adding $7,500 for counsel fees. He also allowed a further $2,000 as reimbursement for the fees and expenses incurred by the trust in connection with the very appeals to the single justice. The panel now reviews the decision of the single justice. See Katz v. Savitsky, 10 Mass. App. Ct. 792, 796 (1980); Miaskiewicz v. LeTourneau, 12 Mass. App. Ct. 880, 881 (1981).

We think there was adequate record support for the trial judge's award. Equally there was record support for the modification of that award by the single justice who, in accordance with Section 6G, was to review the trial judge's award "as if [he] were initially deciding the matter." See Katz, 10 Mass. App. Ct. at 796-797; Miaskiewicz, 12 Mass. App. Ct. at 881-882.

As to the separate award of $2,000 against Cohen related to the Section 6G appeals, the single justice had power to make it, see Katz, 10 Mass. App. Ct. at 798 & n.8, [Note 2] and the question is on the particular exercise. The single justice could hold that Cohen's initiation of an appeal to diminish or eliminate the trial judge's award was not reasonable, even though his opposition to the trust's cross appeal (which he perhaps provoked) for an increase of the award may have been reasonable. Considering the single justice's opportunity for an intimate appraisal of the situation, and the modesty of his award in the circumstances, we find no error.

2. The trust appeals to this court from the judgment against it on its counterclaim for "abuse of process." [Note Star] Here the trust reached for a recovery in very large amount beyond its litigation

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expenditures. After hearing, the judge dealt with the counterclaim in a "Memorandum of Decision and Order for Judgment" in which he concluded that the tort was not made out. [Note 3] The view he expressed was anticipated by the short remark in Beecy v. Pucciarelli, 387 Mass. 589, 596 (1982), to the effect that "mere commencement of litigation to enforce a claim which the person commencing the litigation knows or reasonably should have known to be groundless" does not constitute abuse of process without proof of an "ulterior purpose." Groundless Cohen's action may have been, but it was aimed, professedly and actually, at defeating the subdivision proposal, nothing more or different. There was no perversion of process to achieve an extraneous end. "[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions"; the case is otherwise where there is a "form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion . . . ." Prosser & Keeton, Torts Section 121, at 898 (1984) (footnote omitted). We may despair of drawing a line with mathematical exactness, but we have no doubt that the present case is well on the side of privilege. Compare decisions where abuse has been found, White v. Apsley Rubber Co., 181 Mass. 339, 341 (1902), Malone v. Belcher, 216 Mass. 209, 210-212 (1913), Reardon v. Sadd, 262 Mass. 345, 348 (1928), Jacoby v. Spector, 292 Mass. 366, 369 (1935), Lorusso v. Bloom, 321 Mass. 9, 10 (1947), with those holding to the contrary, Gabriel v. Borowy, 324 Mass. 231, 236-237 (1949); Noyes v. Shanahan, 325 Mass. 601, 604-605 (1950); Quaranto v. Silverman, 345 Mass. 423, 426-428 (1963); Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 390-391 (1975); Beecy v. Pucciarelli, 387 Mass. at 596 (1982); Chemawa Country Golf, Inc. v. Wnuk,

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9 Mass. App. Ct. 506, 508-509 (1980). The trial judge referred to the policy that "[a]buse of process cases, like actions for malicious prosecution, are `not to be favored and ought not to be encouraged,' Wingersky v. E.E. Gray Co., 254 Mass. 198, 201 (1926)," and that "[w]ere the rule otherwise, `many honest litigants would be deterred from invoking the aid of the courts for fear of subjecting themselves to a law suit in return.' Hubbard v. Beatty & Hyde, Inc., 343 Mass. 258, 262-263 (1961)." [Note 4]

The decisions of the single justice awarding the additional $7,500 and the separate $2,000 are affirmed. The judgment on the counterclaim is affirmed, as is the denial of relief under rule 52(b) (see n.3). So ordered.