WILLIAM A. HAHN & others [Note 1] vs. PLANNING BOARD OF STOUGHTON & others, interveners. [Note 2]

HENNESSEY, C.J. These are appeals from actions taken by a Superior Court judge, a single justice of the Appeals Court, and a single justice of the Supreme Judicial Court at various stages of the same case. The case began as an attempt by William A. Hahn and thirteen other residents of the town of Stoughton (collectively referred to as "Hahn") to set aside the approval of a subdivision plan by the planning board of Stoughton (planning board) submitted by Salvatore B. Simeone, Benjamin A. Simeone, Jr., and Maria J. Luongo (developers). The Superior Court judge (a) granted summary judgment for the planning board and the developers, (b) denied Hahn's motion to amend the complaint, stating that the proposed amendment was "immaterial if not frivolous," (c) denied Hahn's motion to reconsider both the granting of summary judgment and the denial of the motion to amend, and (d) with respect to the developers' motion for attorney's fees incurred in defending against the motion to amend and motion to reconsider, ruled "after extensive hearing -- no action taken at this time as I anticipate appeal by plaintiff . . . and am reluctant to cause a `chilling effect' by allowing this motion on this date. Action deferred until appellate review."

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Hahn appealed. The Supreme Judicial Court denied his application for direct appellate review. The Appeals Court affirmed the judgment for the defendants, and awarded double costs. Hahn v. Planning Bd. of Stoughton, 24 Mass. App. Ct. 553 (1987). [Note 3] Hahn applied for further appellate review, which the Supreme Judicial Court denied. 400 Mass. 1106 (1987).

Following the Appeals Court's decision, the developers filed a motion in the Supreme Judicial Court for attorney's fees, costs, and expenses incurred in opposing Hahn's applications for direct and further appellate review. The single justice, to whom this court referred the motion, denied it, stating that there was merit to the developers' contention that Hahn's claims were frivolous, but he was not persuaded that Hahn had acted in bad faith. The developers now appeal from the single justice's order.

Following the Appeals Court's decision, Hahn commenced a proceeding in this court, pursuant to G. L. c. 211, Section 3 (1986 ed.) (general superintendence powers), seeking to have this court set aside the Appeals Court's award of double costs. A single justice of this court denied relief, and Hahn now appeals.

Also following the Appeals Court's decision, the developers renewed their motion in the Superior Court for attorney's fees incurred in defending against Hahn's motion to amend and motion for reconsideration. The Superior Court judge awarded the developers $3,795 in attorney's fees. Hahn sought review in the Appeals Court pursuant to G. L. c. 231, Section 6G (1986 ed.) (appellate review of attorney's fees under Section 6F). A single justice of the Appeals Court affirmed, and Hahn appealed. The appeal is here on this court's granting of the developers' application for direct appellate review. We now affirm each of the decisions below.

1. Hahn's Appeal from an Order of the Single Justice of the Supreme Judicial Court Denying Relief from the Appeals Court's Award of Double Costs.

The Appeals Court awarded double costs to the developers pursuant to Mass. R. A. P. 25, as amended, 378 Mass. 925

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(1979), which states that "[i]f the appellate court shall determine that an appeal is frivolous, it may award . . . double costs to the appellee." Hahn sought relief from a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, Section 3. The single justice declined to set aside the double costs award.

General Laws c. 211, Section 3, states: "The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided." Orders entered by a single justice of the Supreme Judicial Court, however, are not to be disturbed absent an "abuse of discretion" or "clear error of law." Palaza v. Superior Court, 393 Mass. 1001, 1002 (1984). Commonwealth v. Yelle, 390 Mass. 678, 686 (1984). We conclude that the single justice neither abused his discretion nor made an error of law.

The single justice acted properly in light of G. L. c. 211, Section 3, which allows use of the court's general superintendence powers only if "no other remedy is expressly provided." The extraordinary remedy provided by c. 211, Section 3, should be invoked only when appellate review is otherwise unavailable. See Commonwealth v. Lam Hue To, 391 Mass. 301, 306 n.4 (1984). In the instant case, the other remedy expressly provided to Hahn was an application for further appellate review of the Appeals Court's decision. Hahn had, prior to his hearing before the single justice of the Supreme Judicial Court, sought further appellate review, which the Supreme Judicial Court denied.

Although unnecessary to our determination, we add that the Appeals Court's opinion, 24 Mass. App. Ct. 553 (1987), discloses ample support for the imposition of double costs. [Note 4]

2. Hahn's Appeal from an Order of a Single Justice of the Appeals Court Affirming the Superior Court Judge's Award of Attorney's Fees.

The Superior Court judge awarded, and a single justice of the Appeals Court affirmed, attorney's fees to the developers for defending against Hahn's motion for leave to amend the

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complaint, and motion for reconsideration pursuant to G. L. c. 231, Section 6F, which states that a court shall grant attorney's fees where the opponent's claims are frivolous and not advanced in good faith. [Note 5] This court reviews the finding appealed from as if it were initially deciding the matter, a de novo review. [Note 6] We conclude that the attorney's fees were properly granted.

The Superior Court judge sifted through numerous papers filed by Hahn including multiple affidavits, motions to amend, motions to reconsider, motions for summary judgment, letters addressed to the judge, motions in opposition, a motion to strike, and a motion to vacate orders. It is within this context of pleadings, petitions, and appearances by Hahn that the judge concluded that Hahn had acted frivolously and in an absence of good faith.

Hahn's amended complaint raised three points: (1) a predecessor in title had agreed to loam and reforest the gravel site;

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(2) the subdivision approval would require soil removal which had been denied to a predecessor in title; and (3) the owners of the land had a fraudulent deed because it failed to recite consideration. Each of the three theories was irrelevant to the central issue in the case, the correctness of the planning board's approval of a subdivision plan which required only regulatory compliance. The frivolousness of Hahn's actions in his motions to amend and to reconsider are readily apparent in the lack of weight or importance in these claims, and their failure to controvert the material points of the opposing pleadings.

An award of attorney's fees, however, also requires a showing that Hahn's claims were not advanced in good faith. Good faith implies an absence of malice, an absence of design to defraud or to seek an unconscionable advantage. See Black's Law Dictionary 623-624 (5th ed. 1979). Rule 11 of the Federal Rules of Civil Procedure (1987) imposes sanctions upon actions that are not in good faith, those "interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Sufficient evidence existed in the record before both the Superior Court judge and the single justice of the Appeals Court from which to infer an absence of good faith. In our view, based on Hahn's multiple actions throughout the course of the litigation, we reach the same conclusion as the judges below and award attorney's fees.

We recognize the implication of G. L. c. 231, Section 6F, that a judge should consider the possible chilling effect of a decision to award attorney's fees. At this point, there is no danger of chilling any possible appeal based on a novel argument of law. An award of attorney's fees is being affirmed because of a party's irrelevant and immaterial claims, rather than novel theories of law.

3. The Developers' Appeal from an Order of the Single Justice of the Supreme Judicial Court Denying Their Motion for Attorney's Fees.

The developers sought attorney's fees pursuant to G. L. c. 231, Section 6F, which directs a court to award fees to a party if "all or substantially all of the [opponent's] claims . . . were wholly insubstantial, frivolous and not advanced in good faith."

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This court, hearing an appeal, must review the finding appealed from "as if it were initially deciding the matter" and may modify the judgment as warranted by the facts. G. L. c. 231, Section 6G.

The single justice applied the "frivolous and not advanced in good faith" standard to the record before him, which consisted of petitions for direct and further appellate review after the Appeals Court's decision. He concluded that "while there [was] merit in the contention that the [plaintiffs'] claims were frivolous, [he was] not persuaded that the [plaintiffs] acted in bad faith." [Note 7]

Based on the record and other material the single justice had before him, we conclude, as the single justice could have, that Hahn's frivolous undertaking might be based upon poor judgment, rather than an absence of good faith, insincerity, or ill will. [Note 8] We emphasize here the limited record before the single justice, which we now review de novo, as compared to the extended record which was before the Superior Court judge. We, like the single justice, would be reluctant to find ill will or insincerity in Hahn's action based on two applications for further and direct appellate review, and on the details available in the Appeals Court's opinion.

4. The Developers' Motion for Attorney's Fees for Hahn's Current Appeal to this Court.

We also have before us the developers' motion for attorney's fees for defending against Hahn's appeals to this court. For the same reasons which impelled the Appeals Court, the Superior Court judge, and the single justice of the Appeals Court, we, with the entire record before us, inescapably reach the conclusion that Hahn has made frivolous claims that were "not

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advanced in good faith," and therefore award attorney's fees. We remand the case to the single justice of this court for assessment of appropriate attorney's fees for Hahn's appeals to this court in which he sought to have the Appeals Court's award of double costs set aside and in which he sought reversal of the Superior Court judge's award of attorney's fees.

Judgments affirmed.