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In Massachusetts, Defendant Who Prevails on Special Motion to Dismiss Lis Pendens Case Can Recover Appellate Attorneys’ Fees

In its decision last week in DeCicco v. 180 Grant Street, LLC, the Massachusetts Supreme Judicial Court (SJC) answered a previously open question, confirming that a defendant who successfully moves to dismiss a complaint in which the plaintiff obtained a lis pendens is entitled to recover not only its trial court attorneys’ fees but also the fees it incurs on appeal, assuming the trial court’s decision is affirmed.

In DeCicco, the plaintiffs made a written offer to purchase the defendant’s property. The defendant accepted the offer but refused to complete the transaction. The plaintiffs filed suit for, among other things, breach of contract and specific performance, and obtained court approval of a memorandum of lis pendens. This is a document that gets recorded at the registry of deeds to provide public notice that the land at issue is the subject of a lawsuit that may affect its title.

Under the Massachusetts lis pendens statute, M.G.L. c. 184, § 15 (which is patterned after the state’s anti-SLAPP statute), a defendant who believes the plaintiff’s case is frivolous can file a “special motion to dismiss” the case. The lis pendens statute says that if the court grants the special motion, “it shall award the moving party costs and attorney’s fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery.”

Though this language does not expressly provide for an award of appellate court attorneys’ fees, the SJC noted that it has interpreted almost identical language in the anti-SLAPP statute to cover both trial and appellate court fees, because if appellate fees were not included the provision would “ring hollow.” The court held that the same rationale applies in the lis pendens context:

Not only is the language of the two statutes almost exactly the same, but, importantly, the underlying policies are essentially the same. Both [statutes] provide for a special motion to dismiss that is designed to weed out groundless litigation early on, and both are designed to ensure that the successful defendant is made whole by being reimbursed for the legal fees us has incurred in its defense of the summarily dismissed case.

While not surprising, this decision is a welcome confirmation that a defendant who succeeds in obtaining dismissal of a frivolous case under the lis pendens statute is entitled to an award of both its trial and appellate court attorneys’ fees.

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 143

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About this Author

Donald R. Pinto, Jr., Pierce Atwood, litigation lawyer
Partner

Don Pinto has more than 30 years of experience as a civil litigator, with a focus on complex real estate and land use disputes. He handles cases at the trial and appellate levels in the state and federal courts and before administrative agencies. Outside the courtroom Don has successfully resolved many disputes through negotiation, mediation, and arbitration.

Don is also the founder, editor, and one of several contributors to Massachusetts Dirt and Development Law, the firm's real estate blog.

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