Opinion
23-P-164
07-17-2024
ROBERT LEAF v. JAMES M. DRISCOLL, SECOND.
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
The defendant, James M. Driscoll, II, owns a three-acre parcel in Nantucket located at 10 Driscoll Way. On October 20, 2020, Driscoll accepted plaintiff Robert Leaf's offer to purchase the parcel for $1.5 million. After the deal fell apart, Leaf brought a contract action against Driscoll seeking specific performance. Eventually, following a four-day trial, a Superior Court jury found in Leaf's favor on special questions, and the judge entered a corresponding judgment. In a separate memorandum and order, we are today affirming that judgment and orders denying various posttrial motions. Before us now is Driscoll's appeal from a pretrial order that denied dismissal of the case. We affirm.
Background.
Leaf filed his action on December 1, 2020, together with a motion seeking permission to file a memorandum of lis pendens with respect to the property in dispute. Following a hearing, a Superior Court judge allowed the motion. On March 19, 2021, Driscoll filed a motion to dissolve the memorandum of lis pendens, together with a special motion to dismiss pursuant to G. L. c. 184, § 15 (c). Driscoll argued in part that Leaf's complaint omitted certain material facts. At the hearing on the motion, Leaf stated his intent to amend his complaint to add additional facts, and the judge ordered him to do that by a date certain. After Leaf filed his amended complaint, the judge denied Driscoll's motion in a memorandum and order dated May 26, 2021. The judge found that the amendment to the complaint cured any problem with missing allegations and that the amended complaint was not frivolous.
Driscoll took no appeal from the denial of his special motion to dismiss. However, Driscoll's son Michael -- who is co-owner of an adjacent property -- filed his own motion, which he styled as a "motion to strike" the May 26, 2021 memorandum and order. The judge denied that motion both because Michael "lacks standing to challenge a decision that does not affect his rights and [because], in any event, [the motion] presented nothing new beyond what the court already had considered."
On March 9, 2022, Driscoll filed a second motion to dismiss, this one nominally pursuant to Mass. R. Civ. P. 12, 365 Mass. 754 (1974). A second judge (who eventually presided at trial) denied this motion in an order dated July 8, 2022. The second judge observed that the court already had "twice addressed attempts to dissolve the lis pendens and to dismiss the complaint" (once on Driscoll's own motion and again on Michael's motion to strike). Driscoll sought to appeal from that ruling, but the appeal was dismissed after he failed to perfect it.
After Driscoll failed to docket his appeal in a timely manner, Leaf successfully moved to dismiss the appeal.
On September 6, 2022, Driscoll filed yet another motion to dismiss. Driscoll presented this motion, which was denominated a special motion to dismiss, to the second judge. By order dated December 13, 2022, the judge denied it on the ground that the motion amounted to "nothing more than a motion to reconsider [the May 26, 2021 ruling by the first judge denying the original special motion to dismiss] and the defendant has not complied with Superior Court Rule 9D [governing the filing of motions for reconsideration]." Driscoll filed a plenary appeal of that order on January 11, 2023, and it is this appeal that is before us. Meanwhile, the litigation continued apace, with final judgment entering on January 28, 2023.
Discussion.
Driscoll's appeal fails for four independent reasons. First, the judge deemed the relevant motion as one requesting reconsideration of a ruling by a different judge, and he denied the motion based on Driscoll's failure to comply with Superior Court Rule 9D. Driscoll has not shown this to be error; indeed, he does not even argue the point.
Second, even if the judge had gone forward to address the motion himself, that would not have brought back before us the full merits of the original ruling (the May 26, 2021 memorandum and order), from which Driscoll never appealed. Instead, as a motion for reconsideration, the new motion would have been subject to a limited standard of review. See Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass.App.Ct. 461, 470 (2012). Indeed, a judge need not even entertain such a motion if it fails to lay out "changed circumstances" or "a particular and demonstrable error in the original ruling or decision." Id. Moreover, a ruling on a motion for reconsideration is subject to appellate review only for an abuse of discretion. Driscoll has not addressed the applicable standards of review, much less how they were met here.
Third, the propriety of the pretrial ruling has been rendered moot by the entry of final judgment. Cf. Deerskin Trading Post, Inc. v. Spencer Press, Inc. 398 Mass. 118, 126 (1986) (order denying summary judgment cannot be appealed following trial). While there is a pathway to argue on appeal that a plaintiff's case fails as a matter of law notwithstanding an adverse jury verdict, Driscoll did not follow that pathway here, as we explain in our other decision issued this day.
Finally, even if the merits of Driscoll's motion were properly before us, the limited question would be whether the first judge abused his discretion in concluding that Leaf's action was not frivolous. See Fariello v. Zhao, 101 Mass.App.Ct. 566, 569 (2022), quoting Ferguson v. Maxim, 96 Mass.App.Ct. 385, 390 ("On a special motion to dismiss, the defendant bears the burden 'to demonstrate, by a preponderance of the evidence, that the plaintiff's claim is completely lacking in reasonable factual support . . . or . . . any arguable basis in law'" [quotation omitted]). Especially once the moving party has lost the case on the merits after trial, that would be a nearly impossible standard to meet. In any event, Driscoll is unable to make such a showing.
That leaves the question of sanctions. Leaf has requested attorney's fees on the ground that the current appeal is frivolous. In the appeal of the case-in-chief, we denied such a request for the reasons stated there. Quite arguably, a different result should occur here in light of just how weak this separate appeal was, especially after the jury found in Leaf's favor. Nevertheless, after careful consideration of all relevant factors, including the equities, we decline to award fees. The net result of our two rulings today is that the parties are held to the original bargain they struck (the sale of 10 Driscoll Way for $1.5 million), with the parties bearing their own attorney's fees.
In addition, we note that had we awarded attorney's fees to Leaf, his recovery would have been limited only to "reasonable" fees incurred in defending this appeal, an amount that likely would have been only a fractional portion of the amount requested. In this regard, we note that it is evident that Leaf made his defense of this appeal significantly more difficult than it needed to be. For example, he missed entirely the first three grounds for affirming the order listed above and instead filed a detailed, thirty-four page brief addressing the underlying merits. The amount of recoverable fees might well have been dwarfed by additional fees incurred in fighting over them.
Order dated December 13, 2022, denying special motion to dismiss, affirmed.
The panelists are listed in order of seniority.