Opinion
14-P-173
01-13-2015
NICHOLAS KARELLAS v. DIMITRIOS ANTONAKAS & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Nicholas Karellas, appeals from a single justice order that affirmed a trial judge's G. L. c. 231, § 6F award of attorney's fees and costs against him. After review of the briefs, record and appendix, we find no reason to disturb the order of the single justice and, accordingly, affirm.
Background. In brief, the plaintiff filed an action against defendants Dimitrios Antonakas and Peter Stavropoulos, generally alleging, relevant here, that Stavropoulos "induced" him to invest large sums of money in Antonakas' enterprise by (a) telling the plaintiff that he, Stavropoulos, had invested in Antonakas' enterprise (b) making false representations about the return Stavropoulos had received and (c) making false statements about the return that the plaintiff might receive if he invested in the enterprise. The plaintiff proceeded to lend Antonakas substantial sums of money, which were never repaid.
Stavropoulos moved to dismiss the complaint on the basis that all of the plaintiff's claims with respect to him were barred by the Statute of Frauds. A motion judge agreed but declined to dismiss, reasoning that it was possible that the plaintiff might be able to produce a writing to satisfy the Statute of Frauds. Discovery commenced and continued for nearly two years.
In 2011, after discovery closed, Stavropoulos moved for summary judgment. In response to the motion, the plaintiff moved to amend the complaint by asserting, for the first time, that Stavropoulos and Antonakas were in business together and that the plaintiff lent the funds to the "business" (as opposed to Antonakas alone). A motion judge denied the motion to amend and allowed the motion for summary judgment. Judgment entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), dismissing out Stavropoulos.
Antonakas remained in the action.
In an unpublished memorandum and order, a panel of this court affirmed, and, in so doing, noted that "the proposed changes in the amended complaint, when compared to the original complaint, lend themselves to a possible determination of bad faith." Karellas v. Stavropoulos, 83 Mass. App. Ct. 1131 (2013)(Karellas I). The panel went on to amplify, in note 3, that:
"In his first complaint, Karellas alleged that Stavropoulos had made representations regarding 'the soundness of Defendant Antonakas' business,' and that Karellas had advanced money to Antonakas in reliance thereof. Thereafter, once it became apparent that the Statute of Frauds was a significant concern, the amended complaint alleged that Stavropoulos and Antonakas were in business together and that Karellas had advanced money to both Stavropoulos and Antonakas. Further, Karellas, seemingly in contradiction to his original complaint, in an affidavit dated March 21, 2011, stated that he never relied upon 'anything that Peter Stavropoulos said about Dimitrios Antonakas.'"
After the judgment on rescript entered in Karellas I, Stavropoulos moved for attorney's fees and costs under G. L. c. 231, § 6F, generally contending that the plaintiff's allegations were utterly without factual basis, had been raised for improper purposes and that his action as to Stavropoulos was frivolous. The motion judge agreed. The judge then, using the appropriate analysis, determined that Stavropoulos' request was reasonable, and awarded approximately $32,800 in fees and costs.
Discussion. "Our review of a decision of the single justice made under G. L. c. 231, § 6G, is 'of extremely limited scope.' . . . In addition to the broad grant of authority to perform a de novo review, § 6G states that the decision of the single justice 'shall be final.' While this does not divest . . . the Appeals Court from reviewing the decision further according to the rules of appellate procedure, . . . it does require a reviewing court to treat the 'underlying [§ 6F] factual findings adopted and accepted by the single justice as "final" and not themselves subject to further review.' . . . Thus, we review the single justice's decision only for abuse of discretion or other error of law." Fronk v. Fowler, 456 Mass. 317, 328 (2010).
We are not persuaded by the plaintiff's argument that the § 6F award must be vacated because the motion judge did not hold an evidentiary hearing. It does not appear from the record that the plaintiff made such a request, nor is it clear from the record that an evidentiary hearing was required to enable the motion judge to make credibility determinations insofar as the plaintiff does not contend that his credibility is at issue. Contrast Katz v. Savitsky, 10 Mass. App. Ct. 792, 793 n.2 (1980). Instead, what was at issue here is whether there was any reasonable basis to hold Stavropoulos liable. As the plaintiff well knew, that question in turn depended on whether the plaintiff could produce a writing. As the motion judge observed, the plaintiff must have known that he had no such writing.
We reject the plaintiff's argument that the single justice's order must be reversed because the single justice (a) did not hold a hearing and, (b) issued an order that is so brief it is impossible to determine what record she reviewed or what findings she affirmed. General Laws c. 231, § 6G, has no provision for a hearing. Rather it provides for a review by the single justice of the finding and award of attorney's fees and amending, reducing, or rescinding any award, if appropriate; and the record is clear as to the documents that were presented to the single justice in support of and in opposition to the motion.
Finally, we find no merit to the plaintiff's arguments that the single justice and the motion judge "abused discretion" by, essentially, finding that the plaintiff's claims were frivolous as a factual matter, or his argument that the motion judge awarded excessive fees insofar as at least some of those fees were incurred in connection with Antonakas's defense, not Stavropoulos's.
Order of the single justice affirmed.
Stavropoulos's unspecified request for appellate attorney's fees is denied.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 13, 2015.