In cases allegedly involving an interest in real property, the Massachusetts lis pendens statute, G.L. c. 184, § 15, allows the defendant to file a special motion to dismiss frivolous claims. If the trial court allows the motion, it must award the successful defendant the attorneys fees and costs incurred in defending the case. But what happens if the plaintiff appeals? If the judgment is affirmed, does the defendant get its appellate attorneys’ fees too? According to a recent Supreme Judicial Court decision, the answer is yes. See DeCicco v. 180 Grant Street, LLC, No. SJC-12831, 2020 WL 2312751 (Mass. May 11, 2020).
First, some background.
What is lis pendens?
At common law, purchasers of real property acquired title subject to the result of any pending litigation affecting the property. So, if Mr. Smith sued Mr. Jones alleging that Jones swindled him out of his interest in Blackacre, and during the lawsuit Jones sold Blackacre to Mrs. Moore (who knew nothing about the suit), Mrs. Moore would lose her interest in the property if Jones prevailed against Smith.
To mitigate the risk to unwitting purchasers like Mrs. Moore, many state legislatures enacted laws allowing plaintiffs to record memoranda of lis pendens in cases involving title to real estate. Essentially, a lis pendens – latin for “suit pending” – puts potential buyers and lenders on record notice – that is, through the registry of deeds – that a pending lawsuit may adversely affect the property’s title.1 The lis pendens, then, is a powerful tool in a plaintiff’s arsenal: Because no serious buyer or lender would touch a property subject to a lis pendens, the recording of a lis pendens effectively prevents the owner from selling or refinancing until the suit is resolved or alternate security is negotiated.
How does the Massachusetts lis pendens statute work?
In Massachusetts, a plaintiff interested in using the lis pendens statute must first file a verified complaint against all record owners and leaseholders alleging at least one claim that could, if proven, affect the use of or title to real estate. Next, the plaintiff must submit to the court a memorandum of lis pendens, which must include the names of the parties to the lawsuit, the court in which the case is pending, the name of the city or town where the property lies, and a description of the property sufficient to identify it. If the court finds that the action, on its face, implicates use or title to real estate, it will endorse the lis pendens. The plaintiff then must records the lis pendens in registry of deeds covering the county where the land sits.2
So what’s a defendant to do if its property is burdened by a lis pendens?
In balancing the rights of plaintiffs and defendants, the legislature included a provision in the lis pendens statute allowing defendant to specially move to dismiss actions in which a lis pendens has been recorded. To prevail on a special motion to dismiss, the defendant must show that the plaintiff’s underlying complaint is frivolous. An action is frivolous if it is devoid of any factual or legal support or if it must be dismissed based on an obvious affirmative defense like the Statute of Frauds. Unlike a motion to dismiss under Rule 12(b)(6), a defendant may submit verified pleadings and affidavits in support of a special motion to dismiss under the lis pendens statute.
What relief can the court award a defendant under the lis pendens statute?
If the defendant prevails on a special motion to dismiss, the trial court must award the defendant all attorneys’ fees and costs spent on defending the action. The statute, however, says nothing about whether the defendant is also entitled to appellate attorneys’ fees if the plaintiff unsuccessfully appeals from a ruling on a special motion to dismiss.
The SJC took on this issue of first impression in DeCicco. There, the disappointed prospective buyers sued the seller alleging that the seller reneged on a fully formed sales contract. They also sought and obtained a memorandum of lis pendens. The seller then filed a special motion to dismiss the case. The court allowed the motion and awarded the seller its attorneys fees, as required under the lis pendens statute. Unsatisfied with that result, the buyers appealed to the Appeals Court and then to the SJC. Analogizing the lis pendens statute to the Anti-SLAPP statute, the Court held that where the special motion to dismiss protocol was broadly meant to protect defendants against groundless litigation, the only fair result was to award a successful defendant all of its attorneys’ fees, not just those incurred in the trial court.
So, what should litigants take away from DeCicco?
A memorandum of lis pendens is a powerful weapon for plaintiffs. But like many weapons, it must be wielded responsibly to avoid kickback. Plaintiffs should be sure that their claims are well-supported in fact and law before seeking a lis pendens. And they should be doubly sure of their claims in deciding to appeal the dismissal of claims a trial court judge has already found to be frivolous. Landowners, on the other hand, should strongly consider using the statute’s special motion to dismiss to summarily dispose of nuisance suits at the plaintiff’s expense.
If you have any questions about getting or dissolving a lis pendens, please do not hesitate to contact James Gray Wagner, Christopher K. Sweeney, or any other member of Conn Kavanaugh’s Land Use practice group.
1 To be clear, a lis pendens is available only when the plaintiff claims a right to own or occupy the property (as in a lease), not in just any real estate case
2 Because the endorsement of lis pendens memoranda implicates constitutional concerns about due process and property interests, the statutory protocol for getting a lis pendens is rigorously applied.