Opinion
21-P-998
10-07-2022
ROBERT MURCHISON & another[1] v. ZONING BOARD OF APPEALS OF SHERBORN & others.[2]
Unpublished Opinion
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendants Merriann M. Panarella and David H. Erichsen appeal from a decision of a single justice of this court, affirming an order of a Land Court judge denying sanctions against the plaintiffs, Robert and Alison Murchison, under G. L. c. 231, § 6F. In the same decision, the Land Court judge denied the defendants' motion for costs under Mass. R. Civ. P. 11, as amended, 456 Mass. 1401 (2010) . We affirm the order of the single justice under G. L. c. 231, § 6G. We decline to address the defendants' purported appeal from the denial of sanctions under rule 11, which is not properly before us.
Appeal under G. L. c. 231, § 6G . We need not repeat the history of this litigation, which is amply described in the decision of the Land Court judge who dismissed the plaintiffs' action for lack of standing, the decision of this court reversing the dismissal, see Murchison v. Zoning Bd. of Appeals of Sherborn, 96 Mass.App.Ct. 158 (2019) (Murchison I), and the decision of the Supreme Judicial Court affirming the dismissal, see Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209 (2020) (Murchison II). After Murchison II was issued, a second Land Court judge (the first judge having retired) heard the defendants' previously filed motion for costs and denied it. The judge found "for the reasons articulated on the record and as follows" that the plaintiffs' claims "were not 'wholly insubstantial, frivolous and not advance in good faith' as required by G. L. c. 231, § 6F." The single justice affirmed, "discern[ing] no error of law or abuse of discretion by the Land Court."
Nor do the defendants' contentions survive closer scrutiny. This court held in Murchison I, 96 Mass.App.Ct. at 161-162, that the plaintiffs' standing argument based on density was meritorious. The plaintiffs' claim regarding diminution of property value was supported by competent evidence, as the first Land Court judge noted. And as the second judge found, the first judge's rejection of that claim was reached "after evaluating and weighing the credibility" of competing testimony. Although the defendants deride the plaintiffs' lot-width argument, the zoning board of appeals gave it serious consideration before ultimately finding in favor of the defendants. The second Land Court judge did not err in determining that not "all or substantially all" of the plaintiffs' claims "were wholly insubstantial, frivolous and not in good faith." G. L. c. 231, § 6F.
To prevail on a motion for sanctions under G. L. c. 231, § 6F, it is not enough to show that some aspects of the opposing party's claims were frivolous or advanced in bad faith. See Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 782 (1986) (affirming denial of fees where plaintiff's misconduct was "clearly reprehensible" but "does not appear to have permeated 'substantially all' of [plaintiff's] claims"). Rather, the moving party must show "all or substantially all of the claims . . . were wholly insubstantial, frivolous and not in good faith." I_d., quoting G. L. c. 231, § 6F. The Land Court judge, referring to this court's decision that the plaintiffs had established standing, stated, "I cannot find that there was 'a total absence of evidentiary or legal support' [quoting Fronk v. Fowler, 456 Mass. 317, 325 (2010)] for plaintiffs' claims, and find to the contrary." The fact that the plaintiffs succeeded in Murchison I in persuading this court that their position had merit, even though the Supreme Judicial Court ultimately disagreed in Murchison II, is alone a sufficient basis for finding that the defendants did not satisfy the demanding standard of § 6F. See Strand v. Hubbard, 27 Mass.App.Ct. 684, 685-686 (1989) (error to award sanctions where trial judge ruled in plaintiff's favor on one of her principal claims). A question "subject to debate" among appellate judges cannot be frivolous. Datacomm Interface, Inc., supra at 781. See also G. L. c. 231, § 6F ("No finding shall be made that any claim, defense, setoff or counterclaim was wholly insubstantial, frivolous and not advance in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof") .
The defendants essentially argue on appeal that the Land Court judge did not pay sufficient attention to their "lengthy" memorandum and voluminous submissions filed in support of their motion for costs. In addition, they argue that the judge did not engage in detailed fact finding or provide an adequate explanation for denying their motion. In this regard, they argue that plaintiffs' lot-width claim and standing argument --based on density, diminution of property value, and storm water runoff -- had no basis in law or fact, and that the Land Court judge should have concluded as much. Likewise, they assert that the single justice erred in accepting the Land Court judge's determination that there was some good faith basis for the plaintiffs' claims, in light of such clear evidence to the contrary.
These contentions do not warrant reversal of the single justice's decision. Appellate review of that decision is "of extremely limited scope." Danger Records, Inc. v. Berger, 444 Mass. 1, 11 (2005). "[W]e review the single justice's decision only for abuse of discretion or other error of law." Fronk, 456 Mass. at 328. The single justice is not obligated to make an independent determination of the facts but may rely on the subsidiary facts found by the trial judge. See Danger Records, Inc., supra at 9; Pirie v. First Congregational Church, 43 Mass.App.Ct. 908, 909 (1997). Moreover, "the underlying factual findings adopted and accepted by the single justice are to be treated as 'final' and are not themselves subject to further review." Danger Records, Inc., supra at 12-13. The defendants' contention that the evidence did not support the trial judge's findings, accepted by the single justice, that the plaintiffs' claims were not wholly frivolous "is precisely the kind of challenge that is not to be considered" in a § 6G appeal. Id. at 13.
Although it appears that the judge made findings on the record in addition to those included in the order that was entered on the docket, the defendants failed to provide the transcript of the hearing in which those reasons were articulated or any other reproduction of the oral findings. See Mass. R. A. P. 18 (a) (1) (A) (v) (c), as appearing in 481 Mass. 1637 (2019) (appellant has duty to include in record appendix "any findings or memorandum of decision or order by the lower court pertinent to an issue on appeal, including a typed version of any pertinent handwritten or oral endorsement, notation, findings, or order made by the lower court").
Likewise, there is no merit to the defendants' claim that the second Land Court judge failed to make adequate findings to deny their motion. The statute "does not require a judge who declines to award attorney's fees to make specific findings as [to] the reasons for refusing to do so." Datacomm Interface, Inc., 396 Mass. at 781 n.13. Here, in fact, just on the record available to us, see note 4, supra, the judge explained her decision, not only by reference to the plaintiffs' success in Murchison I, but also by discussing the evidence presented at the four-day trial and the prior judge's assessment thereof. Although we do not adopt the standard advanced by the defendants here -- articulated by the United States Court of Appeals for the Federal Circuit in the context of rule 11 -- the trial judge in fact did provide "some explanation for disregarding the proffered showing." S. Bravo Sys., Inc. v. Containment Techs. Corp., 96 F.3d 1372, 1375 (Fed. Cir. 1996).
Rule 11 appeal. The appeal from the denial of the defendants' application for rule 11 sanctions is not before us. An appeal under G. L. c. 231, § 6G, takes a different route from appeals of the balance of the judgment or order. The appeal from the judgment or order follows the usual route of assembly of the record in the trial court and docketing in this court, whereas the § 6G appeal takes an "anomalous route of appeal" directly to the single justice. Danger Records, Inc., 444 Mass. at 8, quoting Bailey v. Shriberg, 31 Mass.App.Ct. 277, 282 (1991). Because this process might cause confusion, this court held long ago that "[a] party who seeks appellate review both of the judgment and of an award of attorney's fees under § 6F will be required to file two notices of appeal, which should result in two separate assemblies of the record." Bailey, supra at 284. Furthermore, the single justice provided specific guidance to the defendants, stating in his revised decision that the appeal of the denial of rule 11 sanctions "is not before me," and advising the defendants to docket the rule 11 appeal separately "as provided in Mass. R. A. P. 10." The defendants failed to do so; the only appeal from this matter entered on the docket of this court is the appeal from the single justice's decision.
Even if the rule 11 appeal were properly before us, we would have no reason to conclude that the Land Court judge abused her discretion in denying sanctions against counsel for the plaintiffs. "[T]he position advance by the attorney need not ultimately be established to be correct, or even reasonable, for the attorney to be protected from rule 11(a) sanctions." Psy-Ed Corp. v. Klein, 62 Mass.App.Ct. 110, 113 (2004). See Salois v. Dime Sav. Bank of N.Y., FSB, 128 F.3d 20, 28 (1st Cir. 1997), quoting Anderson v. Boston Sch. Comm., 105 F.3d 762, 768 (1st Cir. 1997) ("The trial judge should be accorded not only 'additional deference in the entire area of sanctions,' but also 'extraordinary deference in denying sanctions'").
Order of the single justice affirmed.
Meade, Milkey & Massing, JJ.6