Opinion
23-P-595
07-24-2024
SETH DOULL, personal representative,[1] v. LAW OFFICES OF DAVID J. HOEY, P.C.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this unfair and deceptive practices case arising from a dispute over a $1,292.60 stenographer's bill, the plaintiff moved to dismiss the defendant's counterclaims under G. L. c. 231, § 59H. In response, the defendant withdrew its counterclaims with permission of the motion judge, essentially mooting the plaintiff's special motion to dismiss. Later, the defendant made an offer for judgment for twelve thousand dollars payable to a charity of the plaintiff's choice. The offer included language that it was "not to be construed as either an admission that [the defendant was] liable . . . or that [the plaintiff] has suffered any damage." The plaintiff accepted the offer and sought $35,494.33 in attorney's fees, prejudgment interest, and costs. The motion judge allowed only the costs ($504.65). The plaintiff appeals, arguing that he is entitled to attorney's fees and prejudgment interest. We affirm.
The plaintiff settled all claims against the defendant Bramanti & Lyons Court Reporting, Inc., with a stipulation of dismissal. Accordingly, the Law Offices of David J. Hoey is the only defendant in this appeal.
"General Laws c. 231, § 59H, more commonly known as the 'anti-SLAPP' statute, establishes a procedure for obtaining the early dismissal of a claim that seeks to impose liability on individuals for exercising their constitutional right of petition." Bristol Asphalt, Co. v. Rochester Bituminous Prods., Inc., 493 Mass. 539, 540 (2024).
Discussion.
"Our primary duty in interpreting a statute is 'to effectuate the intent of the Legislature in enacting it.'" Commonwealth v. Sousa, 88 Mass.App.Ct. 47, 49 (2015), quoting Campatelli v. Chief Justice of the Trial Court, 468 Mass. 455, 464 (2014). "The language of the statute is the starting point for all questions of statutory interpretation." Bank of N.Y. Mellon v. Morin, 96 Mass.App.Ct. 503, 507 (2019), quoting Retirement Bd. of Stoneham v. Contributory Retirement Appeal Bd., 476 Mass. 130, 135 (2016). "Where the language is clear and unambiguous, it is to be given its 'ordinary meaning.'" Casseus v. Eastern Bus Co., 478 Mass. 786, 795 (2018), quoting Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013). "We review questions of statutory interpretation de novo." Warnajtys v. Warnajtys, 97 Mass.App.Ct. 690, 692 (2020).
The plaintiff raises three claims of error in his brief before this court. First, he contends on two alternative grounds that he should have been awarded attorney's fees pursuant to the anti-SLAPP law. It is true that under the anti-SLAPP statute, "[i]f the court grants such special motion to dismiss, the court shall award the moving party costs and reasonable attorney's fees." G. L. c. 231, § 59H, fifth par. However, "[t]his language is unambiguous: in order to receive an award of costs and fees, the court must first 'grant' the special motion to dismiss." Connolly v. Sullivan, 76 Mass.App.Ct. 316, 318 (2010), quoting G. L. c. 231, § 59H. Attorney's fees are not provided by the statute where the claims or counterclaims are voluntarily dismissed. See Connolly, supra.
The plaintiff alternatively suggests that the defendant should not have been permitted to withdraw its counterclaims after the plaintiff filed the special motion to dismiss. We note that the defendant moved to withdraw its counterclaims before the plaintiff properly filed his special motion to dismiss. In any event, while the judge in her discretion could have conditioned the withdrawal of the counterclaims on payment of attorney's fees, there is nothing that required her to do so. The plaintiff does not provide any citations to authority or persuasive reasoning to suggest that the motion judge abused her discretion in allowing the defendant to withdraw its counterclaims, so this assertion does not rise to the level of an appellate argument and is waived. See Morgan v. Laboratory Corp. of Am., 65 Mass.App.Ct. 816, 821 n.6 (2006) ("The mere assertion of a proposition without citation does not constitute appellate argument").
The plaintiff initially filed his special motion to dismiss without the required affidavit of compliance with Rule 9A of the Rules of the Superior Court. The defendant agreed to dismiss the counterclaims before the special motion to dismiss was re-filed.
Second, the plaintiff argues that he should be awarded attorney's fees as costs because the action was brought under G. L. c. 93A. See Mass. R. Civ. P. 68, 365 Mass. 835 (1974) ("a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued"). We are not persuaded. Setting aside that the motion judge did not make a "find[ing] . . . that there has been a violation of section two" as required for an award of attorney's fees under G. L. c. 93A, § 11, sixth par., attorney's fees are not costs under c. 93A. Compare G. L. c. 93A, § 11, sixth par. ("reasonable attorneys' fees and costs incurred in said action") with 42 U.S.C. § 1988(b) ("a reasonable attorney's fee as part of the costs").
"Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." G. L. c. § 93A, § 2 (a).
Third, the plaintiff argues that he (or the charity of his choice) should receive prejudgment interest pursuant to G. L. c. 231, § 6B or § 6H. To award prejudgment interest, § 6B requires "an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property," and § 6H requires that "damages are awarded." Here, there are no damages. The offer for judgment expressly provides that it is "not to be construed as . . . an admission . . . that [the plaintiff] has suffered any damage," and regardless, it does not award the plaintiff any money. The charity cannot have damages because it is not involved in the underlying dispute. Cf. Governo Law Firm LLC v. Bergeron, 487 Mass. 188, 199-201 (2021) (no prejudgment interest pursuant to G. L. c. 231, § 6H, for disgorgement of profits because it is restitution).
Asserting that this appeal is frivolous, the defendant has requested appellate attorney's fees and costs. We agree, see Marion v. Massachusetts Hous. Fin. Agency, 68 Mass.App.Ct. 208, 212 (2007) ("We may award appellate attorney's fees when we determine that an appeal is frivolous"), and consistent with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the defendant may submit an application for attorney's fees and costs, with supporting documentation, to this court within fourteen days of the date of rescript. The plaintiff shall have fourteen days thereafter to respond.
At oral argument, the defendant suggested that granting fees and costs could constitute "water on the fire" of conflict between plaintiff's counsel and the defendant, which has spanned four appeals in four years before this court.
Judgment affirmed.
By the Court
The panelists are listed in order of seniority.