Opinion
11-P-895
03-19-2012
CAPE COD ASC, LLC v. PETER BENTIVEGNA, M.D. & 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, Cape Cod ASC, LLC (CCASC), brought a six-count complaint in Superior Court against the defendants, Peter Bentivegna, M.D., and Cape Cod Surgery Center, Inc. (collectively, Bentivegna). Bentivegna eventually prevailed on all counts (two counts through a motion to dismiss and the remaining four counts through a motion for summary judgment). However, the judge denied Bentivegna's request for attorney's fees pursuant to G. L. c. 231, § 6F, and a single justice of this court affirmed that denial on appeal. On Bentivegna's further appeal, we affirm the order of the single justice.
A § 6F award is to be made only if the claims or defenses at issue are both frivolous and not made in good faith. Hahn v. Planning Bd. of Stoughton, 403 Mass. 332, 336 (1988). 'A claim is frivolous if there is an 'absence of legal or factual basis for the claim,' Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App. Ct. 259, 267 (2007), and if the claim is 'without even a colorable basis in the law." Fronk v. Fowler, 456 Mass. 317, 329 (2010), quoting from Lewis v. Emerson, 391 Mass. 517, 526 (1984). The Superior Court judge issued a thoughtful explanation of why this standard had not been met. After conducting an independent review of the matter, the single justice issued his own thoughtful explanation of why the 'claims against the defendants were not wholly insubstantial, frivolous or not advanced in good faith.' '[W]e review the single justice's decision only for abuse of discretion or other error of law.' Fronk v. Fowler, supra at 328.
Bentivegna argues that the Superior Court judge failed to make sufficient written findings of subsidiary fact, and that the single justice committed an error of law in approving the denial without such findings. As an initial matter, we note that the statute requires the judge to set forth 'the specific facts' on which his ruling is based only when he finds that an award of fees is warranted. See G. L. c. 231, § 6F. In any event, we agree with the single justice that the Superior Court judge provided all the fact finding necessary to support and explain his reasons for denying the request for fees. Bentivegna's remaining arguments restate his view that a fee award should have been granted, but they do not establish that the single justice abused his discretion in affirming the denial of one.
In other words, such specific fact finding is a precondition to an award of fees, but it is not a precondition to the denial of an award. This asymmetry is consistent with the principle that '[a]n award of attorney's fee should be reserved for rare and egregious cases.' See Police Commr. of Boston v. Gows, 429 Mass. 14, 19 (1999).
Order of the single justice affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),