MISC 16-000734

December 18, 2017

Middlesex, ss.



The defendants, trustees of JOC Trust ("JOC Trust") and Sudbury Station, LLC ("Sudbury Station") have moved for an award of attorneys' fees pursuant to G. L. c. 231, § 6F following my decision granting summary judgment in their favor. In response to cross-motions for summary judgment, I granted summary judgment in favor of the defendants, ruling that the deed of "Parcel 3B" from the town of Sudbury (the "Town") to JOC Trust was not subject to a covenant restricting Parcel 3B to use as an access road to only one house on a single lot on JOC Trust's adjacent land. The Town argued alternatively, that if Parcel 3B was not subject to a restrictive covenant, then it should be subject to an equitable servitude. Failing that, the Town sought rescission of its deed to JOC Trust on the ground that the deed consequently failed to limit the scope of the conveyance to the restricted use authorized by Town Meeting.

On the first issue, I ruled that there was no restrictive covenant created by the reference in the deed to a subdivision plan, which contained a condition of approval imposed by the Planning Board, limiting the approved subdivision, of which Parcel 3B was a part, to "one residential lot," and which further provided "[a]ny further division of said property into more than one building lot shall require Planning Board approval pursuant to MGL 41 and the Town of Sudbury Planning Board Rules and Regulations Governing the Subdivision of Land . . . ." Rather, I concluded that the condition of approval on the subdivision plan was, as it explicitly stated, subject to change upon further action by the Planning Board. Likewise, I concluded that no equitable servitude was established because there was no writing or combination of writings sufficient to satisfy the Statute of Frauds, notwithstanding the Town's argument that no such writing is required. Finally, I rejected the Town's argument that the contested conveyance should be rescinded because it exceeded the authority granted by the Town Meeting in approving the sale of Parcel 3B.

Whether these legal rulings in the context of the summary judgment decision should lead to a conclusion that the Town's claims "were wholly insubstantial, frivolous and not advanced in good faith," G. L. c. 231, § 6F, is the issue now before the court. Specifically, the defendants argue that the Town advanced claims that it knew or should have known were without merit, and that it did so in an attempt, properly characterized as exhibiting an absence of good faith, to use any means available to stop the G. L. c. 40B development proposed by the defendants to be built on JOC Trust's land.

JOC Trust and Sudbury Station filed their motions for attorneys' fees, supported by the affidavits of their attorneys, on November 17, 2017, and November 20, 2017, respectively. On November 28, 2017, the Town filed its opposition. A hearing on both motions was held before me on November 29, 2017, following which I took the matter under advisement. For the reasons stated below, both motions for attorneys' fees are ALLOWED.


G. L. c. 231, § 6F provides in relevant part:

Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice or by a jury, auditor, master or other finder of fact, the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. The court shall include in such finding the specific facts and reasons on which the finding is based.

If such a finding is made with respect to a party's claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims.

"A motion under § 6F is a collateral proceeding, separate from but not entirely divorced from the underlying judgment." Farnum v. Mesiti Dev., 68 Mass. App. Ct. 419 , 428 (2007). Accordingly, such a motion may be heard after final judgment has entered. G. L. c. 231, § 6F is a statutory exception to the familiar "American Rule" in Massachusetts that attorneys' fees generally are not recoverable by the successful litigant as an element of costs. Unless attorneys' fees are allowed by a statutory exception, like that found in G. L. c. 231, § 6F, "[t]axable costs are deemed full compensation to the prevailing party for the expense of conducting litigation, even though in fact such costs do not cover his legal or other expense." Chartrand v. Riley, 354 Mass. 242 , 243-244 (1968), quoting Goldberg v. Curhan, 332 Mass. 310 , 311-312 (1955).

Wholly Insubstantial and Frivolous

"A claim will be considered 'wholly insubstantial' or 'frivolous' where the court finds a 'total absence of evidentiary or legal support.'" Wojtkun v. 258 Andover Street LLC, 23 LCR 240 , 242 (2015) (Misc. Case No. 11 MISC 444479) (Piper, J.), quoting Fronk v. Fowler, 456 Mass. 317 , 325 (2010). A claim is not wholly insubstantial or frivolous merely by reason of being based on "novel theories of law." Hahn v. Planning Bd. of Stoughton, 403 Mass. 332 , 337 (1988). Nor is a claim frivolous merely because the party was unsuccessful. Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 860 (2008). However, some "shreds of evidence" to support a legal claim "would not preclude a finding that the claims were wholly insubstantial and frivolous—even a person bringing the most patently false and groundless claim will customarily offer something that ostensibly supports it." Danger Records, Inc. v. Berger, 444 Mass. 1 , 13 n.12 (2005).

This case turned on a determination whether there was any legal support for the Town's claims, all of which were determined on the basis of a purely legal dispute about the validity of the claims, with no material facts in dispute. Perhaps part of the impetus for the present motion for attorneys' fees pursuant to G. L. c. 231, § 6F, was that in granting summary judgment for the defendants, I made it apparent that I did not find any of the three issues raised by the Town to present anything resembling a close call. With respect to the Town's contention that the reference in the deed to the subdivision approval justified an inference that the reference was intended to impose a restrictive covenant, I found that "[t]his inference is wholly unjustifiable, and is so contrary to the apparent intent of the deed as to raise no legitimate issue of ambiguity (of the deed so as to justify the consideration of parol evidence)." The Town's argument that an equitable servitude could be established without a writing or writings meeting the requirements of the Statutes of Frauds fared no better, as I concluded, "[t]he Town provides neither detailed explanation of nor support for this argument, and this court has itself found none in the jurisprudence of the Commonwealth." As for the contention that the deed for Parcel 3B must be rescinded as having exceeded the authority granted by approval of Article 27 at the Town Meeting, I wrote, "it is altogether clear that the Town's failure to include a restrictive covenant in the deed did not derogate from the authority vested in it by the Town Meeting vote . . . there is no ambiguity in the vote. It plainly does not require the imposition of a restrictive covenant in the conveyance."

In the summary judgment decision, I did not label these claims as wholly insubstantial or frivolous, because I was not required to, but as the above excerpts, and others in the decision indicate, I did not find the Town's claims merely to be of the "novel legal theory" variety. Rather, I considered them, and so find them to have been, advanced with a lack of any substantial legal or evidentiary support. My reasons are stated more fully in the decision, and need not be repeated in detail here, but the idea as advanced by the Town, in particular, that a mere reference in a deed to an approved subdivision plan would automatically turn the conditions of approval of the subdivision plan into restrictive covenants is not only unsupported, but is a dangerous and farfetched proposition. If accepted, such a proposition potentially would turn the routine conditions of approval of hundreds of subdivision plans recorded in the Commonwealth every year, almost all of them intended to be subject to modification or waiver upon further review by a local planning board pursuant to G. L. c. 41, § 81W, into unintended permanent or near-permanent deed restrictions simply because they are referenced in a deed conveying a lot in a subdivision. Similarly, the idea, advanced by the Town, that an equitable servitude can be imposed on the basis, not of a writing or combination of writings meeting the requirements of the Statute of Frauds, but of circumstances to be deduced from other evidence, including statements at public hearings, is not only not supported by any statutory or case law, but is antithetical to our jurisprudence of requirement of writings signed by the parties to a real estate transaction in order to find a conveyance or the imposition of an encumbrance. I found the claim of rescission to be likewise unsupported, where the warrant article approved by the Town Meeting called for conveyance of Parcel 3B subject to subdivision approval and nothing more.

Based on the above, I find that all of the claims advanced by the Town in the present action were wholly insubstantial and frivolous.

Not Advanced in Good Faith

In considering a motion for attorneys' fees, "[a]bsence of good faith of a claimant in litigation may be inferred reasonably from circumstances found by a trial judge, such as the claimant's experience and training, his knowledge of relevant circumstances as found by the trial judge, the extent to which advice and participation of counsel was available to him, the quality and significance of the claimant's grounds advanced for opposing an award under §§ 6F and 6G, and similar criteria." Massachusetts Adventura Travel, Inc. v. Mason, 27 Mass. App. Ct. 293 , 299 (1989).

The plaintiff's claims may be determined to have been advanced with an absence of good faith on the basis of evidence, supported by affidavit, of the plaintiff's intent to interpose the claims for the purpose of delaying or obstructing the defendants' real estate development plans. Pine v. First Congregational Church, 43 Mass. App. Ct. 908 , 910 (1997) (evidence of plaintiff's statements indicating intent to use litigation to delay and drive up expense of real estate plans of defendant sufficient to support finding of lack of good faith). Evidence that the Town's motivation for bringing the present claims was "solely to block G. L. c. 40B, § 21 low or moderate income housing" would justify a finding of absence of good faith, Pheasant Ridge Associates Ltd. Partnership v. Burlington, 399 Mass. 771 , 777 (1987), where there is also evidence that in bringing the present claims, the Town was aware of the absence of substantial merit to its claims. That is the case here.

The record contains uncontradicted evidence that Town officials, including the members of the Board of Selectmen and the town planner, understood prior to the conveyance of Parcel 3B that the conveyance would not be subject to a restrictive covenant limiting the development of JOC Trust's property to one house or one lot, and the record contains similarly undisputed evidence from which a reasonable inference can be drawn that the Town's purpose in contending otherwise in the present action was to block the defendants' proposed G. L. c. 40B development. Specifically, well before the conveyance of Parcel 3B to the JOC Trust, the town planner asked JOC Trust's counsel on behalf of the Board of Selectmen whether JOC Trust would agree to a deed restriction on the parcel of land to which Parcel 3B would provide access. JOC Trust's counsel told the town planner that his client would not agree to a restriction. [Note 1] Although the town planner, in an affidavit, disputes whether the discussion with JOC Trust's counsel was with her or with town counsel (and the date indicated by Mr. Abrams in his affidavit indicates he got the date wrong), she agrees that JOC Trust's counsel, whether in a discussion with her or with town counsel, refused the Town's request to subject the property to a restrictive covenant. [Note 2] She does not dispute the accuracy of the position of JOC Trust that she reported on to the Board of Selectmen in an executive session on February 15, 2011, at which, in response to a question whether "they would deed restrict the parcel to one lot", the town planner answered "no". [Note 3] The chairman of the Board responded, "the land swap is still a good deal for the Town." [Note 4] In a subsequent report to the Board of Selectmen, dated October 20, 2015, on the subject of the defendants' proposed G. L. c. 40B project, the same town planner, while stating that she believed the subdivision approval was for the purpose of serving "1 single family lot," again acknowledged that "[n]o restrictions were placed on the land deeded to the property owners." [Note 5] I credit this evidence, none of which was disputed or contradicted by the Town, as evidentiary admissions of the Town's knowledge prior to bringing the present action, that its primary claim that JOC Trust's land was subject to a restrictive covenant in its deed from the Town, was without any valid basis. Thus the complaint was advanced with an absence of good faith.

Although the above findings are sufficient upon which to base a finding of absence of good faith, this finding is buttressed by further evidence that, knowing the Town did not actually have a restrictive covenant to enforce, it filed the present action seeking such enforcement for the purpose of blocking the G. L. c. 40B project proposed by defendants. I credit, as it is undisputed, that a member of the Board of Selectmen stated with respect to the proposed development to one of the principals of Sudbury Station, "that type of a project will bring the riff-raff into the center of town . . . you know, riff raff like they have in West Virginia, with people that will be working on their cars in the front yards, hanging laundry on their laundry lines, and leaving a mess outside." [Note 6] While I do not attribute a motive of blocking the development to the Town solely on the basis of this one statement of one member of the Board of Selectmen, the Town subsequently confirmed its intent in an official press release. Following the filing of the present action, the Town issued a press release, stating: "Last week the Sudbury Board of Selectmen filed a legal complaint in Land Court to enforce restrictions on a parcel of land that a developer seeks to use for access to the Village at Sudbury Station, a proposed 250-unit housing project in Sudbury's historic town center." [Note 7] While a municipality is certainly not obligated to waive deed restrictions it owns in order to facilitate a Chapter 40B development, that is not the same thing as asserting and attempting to enforce deed restrictions it does not own in order to block a Chapter 40B development. See 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass. 346 (2017).

On the basis of the above evidence, which I credit, and which is in any event not disputed, I find that the claims by the Town in the present case were not advanced in good faith. The Town filed the present action with knowledge that it was without legal or evidentiary support, and for the purpose of blocking the proposed G. L. c. 40B development on the back of its frivolous claims; this constituted an absence of good faith in the filing of the present action.

Attorneys' Fees

It remains to determine the amount of attorneys' fees to be awarded to the defendants. Once a judge has determined that the standards of G. L. c. 231, 6F have been met, "'the statute mandates the award of reasonable counsel fees and other costs and expenses.'" Fronk v. Fowler, supra, 456 Mass. at 325, quoting Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325 , 330 (1997). A judge making the required findings that the action was frivolous and not advanced in good faith is "therefore bound to award fees and costs." Id.

The court's task in determining the amount of the attorneys' fees to be awarded was generally stated in Linthicum v. Archambault, 379 Mass. 381 , 388 (1979), overruled on other grounds, Knapp Shoes, Inc. v. Sylvania Shoe Manufacturing Corp., 418 Mass. 737 (1994): "[T]he judge on remand should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases." The court can expect to have the benefit of detailed, contemporaneous time records showing the work done, and the persons performing the work. Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass. App. Ct. 347 , 366-367 (2005).

Counsel for both Sudbury Station and JOC Trust have submitted requests for the award of attorneys' fees supported by affidavit and by contemporaneous time records. Considering the nature of the case, I find the time and labor indicated by both attorneys to have been reasonable (with two exceptions noted below); and the results obtained by them have been taken into account. The case required considerable and sophisticated motion practice, which both attorneys approached in a professional, accomplished and efficient manner. Both attorneys have been in practice for many years. I find the hourly rate of $325.00 charged by counsel for Sudbury Station to be fair and reasonable and consistent with rates charged by attorneys practicing in smaller offices outside of Boston. I find the hourly rate of $565.00 charged by counsel for JOC Trust to be well in excess of the rates typically charged by attorneys similarly situated in solo practices in the western suburbs of Boston. While counsel is experienced and accomplished, the rates charged by attorneys in small suburban offices are generally considerably less than the hourly rates of attorneys in Boston and in larger offices, at least partly as a reflection of considerably lower rents and other overhead expenses. Accordingly, I believe a reasonable and fair hourly rate for the work performed by counsel for JOC Trust is the same as the $325.00 hourly rate charged by counsel for Sudbury Station.

I have examined the contemporaneous time records of counsel for Sudbury Station and find the time spent and labor performed to be reasonable, and all of it related to the present action. I have examined the contemporaneous time records of JOC Trust's counsel as well and make the following adjustments: time spent and labor performed prior to the filing of the present action on December 8, 2016, while it may have been generally related to the ongoing dispute with the Town, was not sufficiently related to the present action and is not compensable. Therefore, 5.4 hours will be deducted from the award. A time entry of 5 hours on March 29, 2017, for court appearances on the same day in both cases pending before this court will be reduced by half, to 2.5 hours, to reflect that not all the time was attributable to the present case.

Accordingly, Sudbury Station will be awarded attorneys' fees in the amount of $54,716.93, representing 170.10 hours at $325.00 per hour, plus disbursements represented on the time records submitted by counsel; JOC Trust will be awarded $20,507.50, representing 63.1 hours at $325.00 per hour.

Based on the rulings herein, it is

ORDERED that Sudbury Station, LLC's motion for attorneys' fees pursuant to G. L. c. 231, § 6F is ALLOWED, and it is ORDERED that the plaintiff town of Sudbury shall pay to the defendant Sudbury Station, LLC, attorneys' fees in the amount of $54,716.93;

And it is further

ORDERED that Dorothy M. Bartlett, Laura B. McCarthy and Martha J. Bartlett, Trustees of JOC Trust's motion for attorneys' fees pursuant to G. L. c. 231, § 6F is ALLOWED, and it is ORDERED that the plaintiff town of Sudbury shall pay to the defendants Dorothy M. Bartlett, Laura B. McCarthy and Martha J. Bartlett, Trustees of JOC Trust, attorneys' fees in the amount of $20,507.50.

So Ordered.


[Note 1] Affidavit of Robert D. Abrams, dated May 15, 2017, ¶¶ 7, 8.

[Note 2] Affidavit of Jody Kablack, ¶ 4.

[Note 3] The town planner's assertion in her affidavit that she and other town officials relied on the continued viability of JOC Trust's stated intention to agree to a limit on the use of the property to one house lot, based on a proposed agreement that would only have gone into effect if a 2002 subdivision approval had been finalized, is not reasonable or credible, and it is in any event contradicted by her own admission in the February 11, 2015 minutes.

[Note 4] Minutes of Executive Session of Board of Selectmen, February 15, 2011, "Land Negotiations – Abrams Land Swap – Update."

[Note 5] Memorandum to Board of Selectmen from Jody Kablack, Director of Planniing and Community Development, October 20, 2015, Exhibit B to Affidavit of Christopher Claussen, dated May 15, 2017.

[Note 6] Affidavit of Christopher Claussen, ¶ 16.

[Note 7] Joint Statement of Agreed Facts, Exhibit I.