DeLucia v. Kfoury
DeLucia v. Kfoury
Opinion
*166
In 2002, the Legislature rewrote G. L. c. 184, § 15, the so-called "lis pendens statute." See St. 2002, c. 496, § 2. Among other changes, the amended statute provided a procedural mechanism for a party aggrieved by approval of a memorandum of lis pendens to file a special motion to dismiss the action giving rise to the lis pendens if the action is frivolous. See G. L. c. 184, § 15(
c
) ;
Galipault
v.
Wash Rock Investments, LLC
,
Background
. By complaint filed in the Superior Court, the plaintiff asserted claims for breach of contract, breach of fiduciary duty, and specific performance, arising out of a joint venture between the plaintiff and the defendant for development of property in Fall River owned by the defendant.
2
The plaintiff also filed an ex-parte motion for a memorandum of lis pendens, which the judge allowed. The defendant moved to dissolve the memorandum of lis pendens and filed a special motion to dismiss the complaint pursuant G. L. c. 184, § 15(
c
). On January 31, 2017,
*168
the judge denied the defendant's motions. By petition filed on March 1, 2017, within the thirty-day period prescribed by G. L. c. 231, § 118, first par., the defendant then sought interlocutory relief before a single justice of this court. On March 2, 2017, that petition was denied, by reason of a lack of authority by the single justice to grant the requested relief, and the case was closed.
3
See Mass.R.A.P. 15(c),
On March 22, 2017, the defendant filed a motion for reconsideration by the single justice, in which he asked the single justice to refer the case to a full panel of this court for consideration. On March 24, 2017, before any action had been taken on the motion for reconsideration, the defendant filed in the Superior Court a motion for an enlargement of time to file a notice of appeal to a panel of the Appeals Court. A judge of the Superior Court allowed the defendant's motion for enlargement and, on March 30, 2017, the docket of the single justice matter recorded an entry observing that "[a] review of the trial court docket shows that the petitioner's motion to file a late notice of appeal to a panel of the Appeals Court was allowed; accordingly, no action is necessary." On April 4, 2017, the defendant filed in the Superior Court a notice of appeal under G. L. c. 231, § 118, second par. At oral argument, we raised the question of timeliness of the defendant's appeal, and invited the parties to submit supplemental memoranda addressing the question.
Discussion
. As the single justice correctly observed, he was without authority to dismiss the plaintiff's complaint, by virtue of the provisions of Mass.R.A.P. 15(c). See also
Pemberton
v.
Pemberton
,
We are unpersuaded by the defendant's contention that
*751
G. L. c. 184, § 15(
d
), should be construed to override the limitation on the authority of the single justice, in order to give effect to a legislative intent to provide an avenue for an "expedited dissolution
*169
of an unjustified memorandum of lis pendens."
Galipault
v.
Wash Rock Investments, LLC
,
supra
at 74,
Having determined that the single justice correctly determined that he was without authority to dismiss the complaint, we turn to the question of the timeliness of the present appeal. General Laws c. 231, § 118, second par., as amended through St. 1987, c. 208, § 2, prescribes a thirty-day appeal period.
5
The defendant's notice of appeal from the order denying his special motion to dismiss and dissolution of a lis pendens was filed over a month after the thirty-day appeal period had expired. The appeal period, set by statute, cannot be enlarged.
6
See
Morales
v.
Appeals Court
,
As we observed in the introduction, 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 *752 such as those in the present case to create a trap for the unwary. 7 Such a possibility does not, however, confer jurisdiction where none exists. In any event, the consequences here are not as harsh as those present in circumstances where a party by procedural misstep loses the right to an adjudication on the merits; the defendant remains entitled to assert in the Superior Court all grounds on which he contends he should prevail. Moreover, though we are without jurisdiction to consider the merits of the present appeal, our review of the record and the arguments made in the respective parties' briefs persuades us that the Superior Court judge committed no abuse of discretion in denying the special motion to dismiss; as set forth in the complaint, the plaintiff has asserted a colorable claim that the defendant acted in bad faith to deprive the plaintiff of an interest in real property, after the plaintiff had exercised considerable efforts and brought about considerable value in reliance on the parties' joint venture agreement. Whether the plaintiff is successful in establishing that claim in further proceedings in the Superior Court remains to be seen. *171 Conclusion . For the foregoing reasons, the appeal is dismissed as untimely. 8
So ordered .
Pursuant to the joint venture agreement, the plaintiff was to recruit potential tenants for the property, and the property was to be transferred to a limited liability company between the parties upon consummation of a lease with a suitable tenant. The property was then to be marketed for sale, with ninety percent of any value above an established base price to be allocated to the plaintiff. According to the allegations in the complaint (which for purposes of the motion to dismiss and lis pendens we accept as true), the plaintiff negotiated favorable terms of a lease with Cumberland Farms, and presented the lease to the defendant toward the end of the term established by the joint venture agreement, only to have the defendant, in bad faith, delay acceptance of the lease in order to enter the lease with Cumberland Farms on his own, free of any obligation to share profits with the plaintiff.
DeLucia v . Kfoury, Appeals Court, No. 2017-J-0090 (March 2, 2017).
In that regard, the limitation on the authority of the single justice operates in much the same manner as in the circumstance of an appeal claiming that a trial court judge erred in denying a motion to dismiss a complaint, or a motion for summary judgment, on any other basis. Of course, in appropriate cases the single justice may, as a matter of discretion, refer a case for panel consideration. See, e.g.,
CUNA Mut. Ins. Soc.
v.
Attorney Gen.
,
"A party aggrieved by an interlocutory order ... may appeal ... to the appeals court. ... An appeal ... shall be taken within thirty days of the date of the entry of the interlocutory order." G. L. c. 231, § 118, second par.
The trial court judge perhaps mistakenly enlarged the time for filing the notice of appeal pursuant to Mass.R.A.P. 4(c), as amended by
Indeed, it appears from the docket entry on the defendant's motion for reconsideration that the single justice may have declined to act on the request for referral of the defendant's appeal for panel consideration based upon the belief that the Superior Court order allowing an enlargement of time to file a notice of appeal rendered such a referral unnecessary. In appropriate circumstances where a party seeks review by the single justice under the first paragraph of § 118 from the denial of a special motion to dismiss, and where the single justice believes the appeal may have merit, the single justice may refer the appeal for panel consideration (thereby rescuing the party from the procedural misstep), rather than dismissing the petition. As we discuss below, the present appeal does not appear to us to present such circumstances.
In the exercise of our discretion, we decline the plaintiff's request for an award of appellate attorney's fees.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.