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Court: Lis pendens appeals process can present ‘trap for unwary'

Published by Massachusetts Lawyers Weekly.

May 3, 3018

Parties seeking the dismissal of an action giving rise to lis pendens should take heed of a recent Appeals Court holding, real estate practitioners say.

The defendant in the case saw his special motion to dismiss an underlying lis pendens complaint denied by a Superior Court judge, and by statute he could then petition a single Appeals Court justice for interlocutory relief or appeal to a full panel.

However, a decision by Chief Justice Mark V. Green makes clear that such a defendant should pursue the latter course.

Because a single justice lacks the authority to dismiss a complaint under Massachusetts Rule of Appellate Procedure 15(c), the defendant’s petition seeking that relief in the instant matter was denied. Further, since his subsequent notice of appeal to the panel was filed beyond the 30-day period allowed by statute, the appeal was dismissed.

“The present case illustrates a trap for the unwary lurking in the interplay between the [lis pendens and interlocutory appeal] statutes, operating in conjunction with the rules governing the practice of the single justice of this court,” wrote the chief justice.

The 9-page decision is DeLucia v. Kfoury, Lawyers Weekly No. 11-047-18. The full text of the ruling can be found here.

‘Treacherous’ interplay

Robert E. McLaughlin Jr. of Boston represents the plaintiff who filed the lis pendens.

“This case is at the intersection of case management strategy, the two statutes, and the appellate rule,” he observed. “As the court said, it is a ‘trap for the unwary’ where the defendant was looking for quick relief but ran into the limitation of the power of a single justice.”

McLaughlin noted that the underlying action is not stayed when a special motion to dismiss is denied, and choosing to proceed before a single justice would seem to offer a quick resolution. But Rule 15(c) is a roadblock.

Fall River attorney Bruce A. Assad, who represents the defendant, did not respond to a request for comment by press time.

Boston attorney David R. Suny, who was not involved with the case, agreed that “the two statutes and the procedural rule have an interplay here that is definitely treacherous.”

He explained that the holding springs from the fact that subsections (c) and (d) of the lis pendens statute, G.L.c. 184, §15, direct that an interlocutory appeal may be pursued through a single justice under the first paragraph of G.L. c. 231, §118, or an appellate panel under the second paragraph.

“The defendant here proceeded under paragraph one, but that was not a viable option even though there’s nothing in that paragraph to restrict someone in his shoes from seeking that relief. … [H]e got trapped because of the separate rule of procedure regarding the powers of a single justice,” said Suny.

The bottom line, he said, is that the party looking to have the complaint kicked out should not proceed under the first paragraph. On the other hand, if the positions are reversed and the plaintiff has lost on the defendant’s motion to dismiss but is seeking to keep the matter alive, the first paragraph is a viable option.

Boston attorney Lawrence P. Heffernan agreed.

“These two statutes set forth a detailed and somewhat complex procedure to follow. The Appeals Court in this case set out a reminder and alert about the limits of §118’s first paragraph. It can’t be used to dismiss a case. The defendant in this case should have taken it to a full appellate panel,” he said.

With the defendant’s ultimate attempt to do that deemed untimely, the holding is a reminder that there is no leeway to extend a time period set by statute, said Somerville attorney Adam T. Sherwin. He contrasted that with a time limitation set by court rule, where an extension might be granted for “good cause shown.”

Martin P. Desmery of Boston said that practitioners should take the time to consider the best course of action in this context.

“The inclination for an attorney is to jump right in [upon the filing of a motion for lis pendens], but a special motion to dismiss may be a tough pill for most judges to swallow on the second day of a real estate case,” he said. “And the standard for dismissal is whether the action is frivolous, which is hard to meet when all you have are the four corners of the complaint.”

Desmery’s strategy is to prepare a more robust filing, combining a special motion to dismiss with a Rule 12(b)(6) or Rule 56 motion, perhaps with the benefit of some discovery and affidavits. In that way a judge can see a more complete picture and rule on the merits.

“It’s ‘easier’ for the judge that way because he is not forced to say it was a frivolous action and award attorney fees as the statute requires,” he said. “And, if you’re then denied, you have immediate appellate rights.”

Untimely appeal

In October 2016, Anthony DeLucia brought suit against Robert Kfoury in the Superior Court, asserting claims for breach of contract, breach of fiduciary duty and specific performance arising out of a joint venture agreement to develop property owned by Kfoury in Fall River.

DeLucia also filed an ex-parte motion for a memorandum of lis pendens, which the judge allowed.

Kfoury moved to dissolve the memorandum of lis pendens and filed a special motion to dismiss the underlying complaint pursuant to the “lis pendens statute,” G.L. c. 184, §15(c), but the judge denied those motions on Jan. 31, 2017.

G.L.c. 184, §15(d), allows a party aggrieved by a ruling under §15(c) to appeal pursuant to the first paragraph (single justice petition) or second paragraph (appellate panel) of G.L.c. 231, §118. Kfoury sought interlocutory relief by filing a petition with a single justice of the Appeals Court under the first paragraph.

Lacking the authority to dismiss a complaint by virtue of Rule of Appellate Procedure 15(c), the single justice denied the defendant’s requested relief.

On March 22, 2017, Kfoury filed a motion for reconsideration by the single justice, asking for a referral to a full appellate panel. The single justice did not take action, however, because the Superior Court in the meantime had allowed the defendant’s motion to enlarge the 30-day time period to file a notice of appeal to an appellate panel under §118’s second paragraph. The defendant filed on April 4, 2017.

With that appeal the subject of the present case, Green first confirmed that the single justice lacked the authority to dismiss the plaintiff’s complaint under the dictates of Rule 15(c).

“We are unpersuaded by the defendant’s contention that G.L.c. 184, §15(d) should be construed to override the limitation on the authority of the single justice,” he wrote.

Green also noted that the right of appeal under §15(d) is not rendered illusory because of a single justice’s limited authority, in that “the single justice is empowered to grant relief from any order allowing [as opposed to denying] a special motion to dismiss a complaint pursuant to the statute.”

Turning to the timeliness of the defendant’s subsequent appeal to the panel, the judge found that Kfoury’s notice was filed over a month after the 30-day appeal period had expired. It was dismissed accordingly.

Given that a time limitation set by statute cannot be changed, Green wrote, “the Superior Court judge was without authority to enlarge the time for appeal, and his order purporting to do so was a nullity.”

The court concluded, “The operation of the lis pendens statute, together with the statute governing interlocutory appeals and the rule governing the single justice practice, can combine in circumstances such as those in the present case to create a trap for the unwary. Such a possibility does not, however, confer jurisdiction where none exists.”

Green’s opinion noted that the consequences here are not as harsh as they may seem, since the parties retain their right to adjudicate their dispute on the merits in the trial court.


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