MISC 325720

April 6, 2009


Piper, J.


Before the court are the plaintiffs’ motion for reconsideration of the court’s order granting the defendants’ special motion to dismiss (brought and allowed by the court pursuant to G.L. c. 184, §15(c)) and the defendants’ request for an award of legal fees and related amounts, based on the court’s allowance of the special motion to dismiss. The court decides that the order allowing the special motion to dismiss is to stand, and allows in part the motion for an award of fees.

In their complaint, plaintiffs challenged the vitality of an easement which of record, as a matter of registered title, burdens their Lot 3.

Plaintiffs’ concerns with this easement fall into two general categories. The first, which the court ruled was not the subject of a proper memorandum of lis pendens, has to do with the ability of defendants to rely on the easement rights, which defendants hold of record in Lot 3, to allow them to include the frontage of Lot 3 along the public way, Shawkemo Road, to satisfy the frontage requirements of the Nantucket Zoning By-law.

The second aspect of plaintiffs’ challenge to the easement reserved in the 1991 deed is based on their theory that the easement no longer is appurtenant to Lot 10, owned by defendant Ackquire Group, LLC, because of the lack of contiguity of Lot 10 to the burdened parcel, plaintiffs’ Lot 3. In the court’s order allowing the special motion to dismiss, the court ruled that this contention by the plaintiffs was so devoid of arguable basis in law to merit dismissal. Plaintiffs, represented by new counsel, seek reconsideration of this ruling.

Plaintiffs advance several reasons why the court should depart from its earlier ruling that the plaintiffs’ case merited dismissal under the special motion to dismiss provisions of the lis pendens statute. None of these reasons justify the requested change in the court’s order dismissing the action. After considering again the rulings made in the court’s order granting the special motion to dismiss, the court discerns no basis to say that those rulings were wrong. Only a few of plaintiffs’ arguments require elaboration beyond the discussion set out in the original order.

Plaintiffs contend that a special motion to dismiss under G.L. c. 184, §15(c) can only be granted where the court has approved a request for endorsement ex parte, and not where, as here, the court, after full hearing, has considered together the questions whether the memorandum should be endorsed and whether the action should be dismissed. In this case, upon learning of the court’s ruling dismissing their complaint, plaintiffs withdrew their request for judicial endorsement of the memorandum of lis pendens. It is the plaintiffs who now say that the court, having never had before it a memorandum of lis pendens in form suitable for endorsement, should not have allowed plaintiffs’ request for endorsement, and that, as a result, it was inappropriate for the court to have considered and granted the defendants’ special motion to dismiss. From this, plaintiffs argue that they should face no responsibility to defendants for their fees.

Review of the statutory scheme convinces the court that the special motion to dismiss is available not only when a lis pendens memorandum is endorsed ex parte, but also in a case such as this one where the parties all are heard prior to the court acting on the request for endorsement. The statute, in section 15(c), envisions that a request for endorsement may be allowed, in appropriate cases on a specific showing, without notice to the defendant. In such a case, the defendant is given the right to a prompt hearing on the dissolution of the memorandum. If the defendant, upon learning of the ex parte endorsement, seeks dissolution, the court at the hearing places on the plaintiff the burden of “justifying any finding in the ex parte order that is challenged by the” aggrieved party. If the claimant fails to satisfy that burden, the court orders dissolution of the memorandum of lis pendens earlier approved without hearing. Dissolution is proper when the findings necessary for endorsement are, after hearing from the defendant, shown to have been made improvidently. Presented with opposing views, the court might conclude, for example, that the subject matter of the action does not constitute “a claim of a right to title to real property or the use and occupation thereof.” This remedy dissolves the memorandum; dissolution of the memorandum does not address the merits of the plaintiff’s claim, and does not bring about dismissal of the litigation.

As an additional and separate procedure, the statute creates the special motion to dismiss as a way for the defendant to go beyond clearing the record title of the memorandum, and to gain dismissal of the entire claim. This is a separate mechanism: “[a] party may also file a special motion to dismiss the claimant’s action....” (emphasis supplied). Unlike the dissolution of the memorandum, which looks only to the words of the complaint to test whether the claim is of the type which qualifies for recording a notice of the pending action, the special motion to dismiss deals with the sufficiency of the claim as a legal and factual matter, testing for frivolity by the distinct standards the statute sets out. The special motion to dismiss is considered by the court, if necessary, with the benefit of affidavits and other evidence. And in the case of allowance of a special motion to dismiss, the court is required by the statute to award “the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery.”

Nothing in the statute or the system it establishes shows that the special motion to dismiss procedure should only be available when the court has, as an initial matter, summarily endorsed a lis pendens memorandum without having heard from the defendant. If the defendant is given the chance to weigh in, and, faced with a plaintiff who presses forward with a request for endorsement, challenges on the merits the plaintiff’s underlying claim, showing it to be frivolous, then the court should be able to entertain such a motion to dismiss even if no ex parte endorsement first took place. The decision to endorse turns on whether or not the complaint states the right kind of claim for a memorandum of lis pendens, and does not consider in any manner the merits of that claim. It is the special motion to dismiss which tests the merit of the claim, albeit by a rather indulgent standard.

A court may well determine that the claim, as pleaded, affects title and thus justifies endorsement of a lis pendens notice. That is, in fact, what happened here, in part. The court concluded that, as to the plaintiffs’ claims attacking the vitality of the defendants’ easement rights, the standard for endorsement was satisfied. (As to the second category of plaintiffs’ claims–those dealing with the zoning import of the challenged rights–the court concluded that those claims were not appropriate subjects of a lis pendens memorandum). With that conclusion reached, the court then turned to the attack by defendants on the merits of the plaintiffs’ claims, and ruled, based on the record the parties assembled, that the challenged claims failed to rise above the level of being frivolous, as defined in the statute.

Plaintiffs cannot escape from the consequences of the grant of the special motion to dismiss by withdrawing the request for endorsement after learning of the court’s ruling. At that point, the cost and other burdens on the defendants already had been fully sustained by them. Whether or not the plaintiffs wished at that time to pursue registration of a memorandum of lis pendens, they cannot, by the simple expedient of withdrawing the request for endorsement, avoid compensating defendants for their cost of seeking dismissal.

It was appropriate for the court to act as it did in both granting the special motion to dismiss and also allowing the motion for endorsement. Plaintiffs sought endorsement so they could file a notice as to the title to defendant’s land; the notice plaintiffs asked for would put the world on notice that plaintiffs contended that the challenged record easements no longer were available as appurtenant to defendant’s property. Such a memorandum of lis pendens properly serves to warn those who may acquire an interest in the disputed land of the litigation and the possibility that the case’s outcome might affect any title acquired.

This central purpose of the lis pendens statute would be defeated if, should defendants successfully challenge the trial court’s dismissal in an appeal to the Appeals Court, some innocent third party acquired title without there being a lis pendens notice in place to give warning of plaintiffs’ claim. A buyer of defendant’s land who had no record notice of plaintiffs’ attack on the vitality of the registered easement might well avoid the effect of a final judgment, after appeal, which ran in plaintiffs’ favor. In a case where, as here, there is a claim which facially affects title, the registration of a lis pendens notice keeps the title protected should the plaintiffs prevail on appeal. In this case, plaintiffs have signaled their intention to appeal. That the plaintiffs now have concluded that they no longer wish to have the benefit of a registered lis pendens filing does not mean that the court was in any way wrong to have allowed the request for endorsement. It follows that the court was right to have considered and allowed the special motion to dismiss, given the posture of the case before the court.

The remaining grounds on which the plaintiffs seek reconsideration also are unpersuasive. Without revisiting the disposition of plaintiffs’ arguments in the original order, the court, having reviewed the arguments plaintiffs make for reconsideration, adheres to the rulings as initially made. In brief, the court continues to view the central argument advanced by plaintiffs–that “subdividing a parcel can extinguish an easement when the subdivided property no longer touches the burdened parcel”--as unsupported by Massachusetts precedent to a degree that renders that argument “devoid of any arguable basis in law.” It is of course true that a party may call to a court’s attention a need, advanced in good faith and supported by adequate authority, for modification of settled law. This is particularly so if there is a discernable new trend in the law, either in the Massachusetts courts or elsewhere, which shows a likelihood that our Supreme Judicial Court would change the common law. But making such an argument requires far more support than put forward here by plaintiffs, who point only to a pronounced minority of other jurisdictions in which the courts might deal somewhat differently with a fundamental point of real property law long established in the Commonwealth.

Having reconsidered the original order, the court concludes that the dismissal of plaintiffs’ claims was right.

This leaves the court with the obligation to consider the defendants’ requests for costs and reasonable attorneys fees. The parties have submitted their requests and oppositions on this question; in response to the court’s request, the plaintiffs’ initial fee submissions were supplemented and further supported.

The statute involved here, quoted above, does require an award to defendants. It is the amount of the award to which the court must turn.

“A trial judge has considerable discretion in awarding attorney’s fees under applicable statutes....” Galipault v. Wash Rock Investments, Inc., 65 Mass. App. Ct. 73 , 86 (2005). The court must review the supporting submissions to assess whether the requested award of fees is fair and reasonable given the nature of the work involved. The court needs to examine, among other factors, the number of hours expended, the identity and skills of the lawyers and paraprofessionals handling the various aspects of the work, and the propriety of the hourly rates charged by each.

Defendant Ackquire Group, LLC by its counsel has submitted fee requests totaling $50,399.00 for services rendered, representing 125.40 hours of legal work put in by five people, four of whom are lawyers and one of whom is a paralegal.

Defendant VBDC LLC has requested on behalf of its Boston counsel’s services an award of $24,776.26 in fees, representing 78.60 hours reported by two lawyers and five paralegals. In addition, VBDC seeks an award in the amount of $8,375 with respect to work performed by VBDC’s Nantucket counsel; this is sought for 28.25 hours of professional services rendered by three lawyers in the Nantucket firm.

Added together, the request is for $83,550.26 to be awarded with regard to legal services rendered to these two defendants in the defense of plaintiffs’ claims in this court.

Plaintiffs, in their opposing memorandum, challenge much about these requests.

Defendants must deal with some important issues in connection with their application for a fee award. First, there are three law firms representing two defendants with closely allied legal positions. Both Boston law firms filed motions, memoranda, and supporting affidavits and other record material opposing the lis pendens request and seeking dismissal. VBDC’s Nantucket counsel appears to have had a more supporting and consultative role. Although parties assuredly are entitled to representation by counsel of their own selection, the court needs to consider whether, when a pair of defendants mounts a combined defense with essential agreement on all the implicated material facts and points of law, there should not, to be reasonable, be some expectation that counsel will coordinate their efforts to minimize the aggregate number of hours spent defending the common claims of the plaintiffs. Here, defendants seek to be compensated for in excess of 232 hours of legal services.

It is also the case that the dispute before this court is part of a larger controversy which has existed among these parties. There have been battles not only at the local level, before local land use boards and officials, but also litigation on closely-related claims in the Superior Court Department. In response to inquiry from the court, defendants’ counsel supplemented their submissions to say, in most instances, that the legal work relating to these other proceedings were not included within the fee request made in this court–that the work billed by these lawyers in connection with the Superior Court case and Nantucket local proceedings was specifically billed for separately. Although the court has no reason to doubt the accuracy of the averments made to this effect, the court must bear in mind the close commonality of facts and legal issues between the litigation in this court and the other separately-billed work. The conclusion is not difficult to reach that, having performed (and been separately paid for) that other work, the same counsel would have been especially well-prepared, knowledgeable, and efficient when working on this Land Court litigation.

The court does not have any particular reason to find that the hourly rates of the lawyers and paralegals involved in this case, reflected on the detailed billing statements supplied, are anything but appropriate, given the reputation, skill, experience and stature of the individuals involved. Also, in general, the court finds the manner of presentation of the request for fees satisfactory as supplemented; there is reasonable, if not minute, detail about who was doing what on a day by day basis.

Nevertheless, taking into account the totality of the fee submissions made, and having in mind each of the objections lodged by plaintiffs, the court concludes that some meaningful downward adjustment of the requests is in order. The court is obliged to reduce the award to the defendants in light of the factors discussed above, including the conclusion that there ought have been a more efficient sharing of the costs of mounting a common defense, and that, particularly in light of the other legal work on closely-related issues and matters for which defendants’ counsel were paid separately, the work performed in this Land Court case appears to have tallied up to more hours than should have been required. The total number of hours alone, 232.25, is, all factors taken into account, not justified given the posture of this case; while it presented some thought-provoking title questions and legal issues, this case did not progress procedurally beyond the pleadings and the grant of the motions to dismiss.

The court is unconvinced that much of the work reflected on VBDC’s Nantucket counsel’s revised submission is directly and reasonably related to the defense of the Land Court case, as opposed to being of some use, in a consultative way, to litigation counsel in Boston. Much of Nantucket counsel’s work had utility in the larger sense in helping VBDC with its title and local land use concerns. Exercising the discretion committed to the court in awarding fees, and considering the revised submission made by Nantucket counsel, the court awards VBDC $1,500 with respect to this work.

The court, exercising the discretion committed to the court in awarding fees, and considering the supplemented submissions made by VBDC’s Boston counsel, awards VBDC $14,850 with respect to this work.

The court, exercising the discretion committed to the court in awarding fees, and considering the supplemented submissions made by Ackquire’s counsel, awards Ackquire $30,225 with respect to this work.

Also, the court, in its discretion, declines to make an award with respect to additional amounts sought with respect to disbursements and costs above the requested legal fee amounts, finding that the specificity of items, and the need for incurring these amounts, is insufficiently shown.

The judgment the court will order entered will make an award with respect to fees, to be paid in the amount of $16,350 to VBDC and $30,225 to Acquire.

It is

ORDERED that, upon reconsideration of the court’s Order granting defendants’ special motion to dismiss, that Order is to stand as issued. It is further

ORDERED that judgment is to enter dismissing this action, and awarding attorneys’ fees as set forth in this Order. It is further

ORDERED that the motion of William V. Hovey for leave to withdraw is ALLOWED.

So Ordered.

By the Court (Piper, J.).