Opinion
11-P-1934
12-07-2012
HENRY J. DULAURENCE, THIRD v. ARTHUR G. TELEGEN & 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
Terminated by Liberty Mutual Insurance Company in April, 1995, Attorney Henry J. DuLaurence, III, lodged fourteen claims in a Superior Court action, and ultimately prevailed on none. That litigation was marked by particularly acrimonious discovery battles requiring a significant amount of judicial involvement, including four unsuccessful single justice appeals by DuLaurence. Following the adverse judgment in that case, and the exhaustion of his appellate rights, DuLaurence brought this tort and 'independent action' under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), in August, 2010, against Liberty and its lead counsel, Arthur G. Telegen. The thrust of this action is DuLaurence's contention that he was effectively denied his day in court due to the discovery abuses in the initial action. A judge allowed the defendants' special motion to dismiss pursuant to G. L. c. 231, § 59H, ruling that DuLaurence's complaint was based solely on petitioning activity. We affirm. See Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App. Ct. 259, 262 (2007). A review of the amended complaint in this case establishes that DuLaurence's claims are based solely upon the defendants' petitioning activities, that is, statements and conduct in the course of the judicial proceedings. See Plante v. Wylie, 63 Mass. App. Ct. 151, 157 (2005), cited with approval in Cadle Company v. Schlichtmann, 448 Mass. 242, 252 (2007) ('attorneys who speak on behalf of petitioning parties' enjoy the protection of the statute to the same extent as their clients). See also Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002). DuLaurence's underlying claims were rejected at trial and on appeal. There was no abuse of discretion or error of law in dismissing this suit. See McLarnon v. Jokisch, 431 Mass. 343, 348-349 (2000). The defendants prevailed, and DuLaurence cannot show as a matter of law that there was 'no reasonable factual support or basis in law for the defendants' petitioning activities.' Id. at 349. See Fabre v. Walton, 436 Mass. 517, 524- 525 (2002); North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 865-866 (2009).
DuLaurence's factual allegations in this action closely tracked those raised in his appeal from the adverse judgment. In that appeal, DuLaurence maintained that he was entitled to relief from the judgment based on the 'egregious discovery violations that clearly prejudiced his case.' According to DuLaurence, the defendants' misconduct included violations of numerous court orders, withholding evidence, misleading judges, misrepresentation, the violation of 'almost every disciplinary rule,' and fraud on the court. DuLaurence's argument regarding the discovery abuses did not meet proper appellate standards. He therefore failed to show prejudicial error or an abuse of discretion. See DuLaurence v. Liberty Mut. Ins. Co., 74 Mass. App. Ct. 1125 (2009). The adverse judgment and the unfavorable discovery rulings are now final and not subject to collateral attack in this proceeding. See McLarnon v. Jokisch, 431 Mass. 343, 349 n.10 (2000).
The judge separately allowed the defendants' motion, under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the amended complaint. Finding as we do, we need not reach the judge's secondary basis for her ruling.
As the prevailing parties on a special motion to dismiss, the defendants were entitled to an award of costs and reasonable attorney's fees. See G. L. c. 231, § 59H; Office One, Inc. v. Lopez, supra at 126-127. The judge's order here demonstrated that she arrived at the amount of her award after a hearing, an in camera review of the defendants' unredacted billings obtained pursuant to her order, and deductions for amounts she found impermissibly included in the defendants' request. We find no abuse of the judge's broad discretion in the amount of the award.
The judgment dismissing DuLaurence's complaint is affirmed. The order allowing the motion for attorney's fees and costs is affirmed. DuLaurence's motion to report the case to the Bar Counsel of the Board of Bar Overseers is denied.
So ordered.
By the Court (Trainor, Agnes & Sullivan, JJ.),