Opinion
11-P-552
12-22-2011
RUSSELL & ASSOCIATES LLC v. RFF FAMILY PARTNERSHIP LIMITED PARTNERSHIP.
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
Russell & Associates LLC (Russell) appeal from an order of the Land Court which allowed in part and denied in part a special motion to dismiss pursuant to G. L. c. 184, § 15. We affirm.
Russell brought a claim in Land Court seeking (1) a declaration that it had a first priority lien on a piece of property, owned by their client, by way of an attorney's lien pursuant to G. L. c. 221, § 50, (2) a determination of the priority of its claimed attorney's lien on three unregistered parcels of land, and (3) a declaration that it holds a first or second priority position lien due to an assignment of a mortgage. Russell was granted an ex parte judicial endorsement of memorandum of lis pendens, in response to which the defendants filed a special motion to dismiss pursuant to G. L. c. 184, § 15(c). The judge determined that the attorney's lien claims lacked an arguable basis in law and granted the special motion to dismiss in part.
1. Attorney lien statute. Pursuant to G. L. c. 221, § 50, an attorney 'shall have a lien for his reasonable fees and expenses upon his client's cause of action, counterclaim or claim, upon the judgment, decree or other order in his client's favor entered or made in such proceeding, and upon the proceeds derived therefrom.' Russell claims that a lien attaches to real property where that real property is the subject matter of a dispute in which he holds an attorney's lien. As the judge held, this claim is 'frivolous' under G. L. c. 184, § 15(c). The judge properly determined that Russell's action was not properly brought in the Land Court, and should have been brought in the 'court in which the proceeding is pending or, if the proceeding is not pending in a court, the [S]uperior [C]ourt.' G. L. c. 221, § 50. Because the underlying litigation was pending in the Suffolk Superior Court, the lien could not be brought properly in the Land Court.
Russell also claims that, based on the Supreme Judicial Court's decision in Ropes & Gray LLP v. Jalbert, 454 Mass. 407 (2009), an attorney's lien attaches to a patent application and the proceeds therefrom, therefore an attorney's lien may be held in real property. We disagree. In Ropes & Gray, the court determined that patent applications were the type of claim that would allow an attachment for an attorney's lien, and therefore Ropes & Gray had an attorney's lien in the patent applications filed on behalf of their clients. Id. at 414- 415. From this holding, Russell argues that because the patent application was the 'claim' of the underlying litigation, then similarly, real property that is the subject of the underlying litigation in this case is subject to an attorney's lien. However, Russell's claim ignores the plain language of the statute and the fact that Russell may request that the Superior Court determine that it has a lien in the pending litigation (this would be acceptable under the holding in Ropes & Gray). The attorney's lien does not become choate until there are proceeds derived from the judgment in the litigation. See id. at 416 n.11. Russell, therefore, may have a lien on proceeds their client receives, but not an interest in the real property itself. See Curly Customs, Inc. v. Pioneer Financial, 62 Mass. App. Ct. 92, 97 (2004). The decision Ropes & Gray was a recognition by the court that the patent application process is dissimilar to 'traditional litigation,' but is nonetheless an area where attorneys are 'entitled to compensation' pursuant to G. L. c. 221, § 50. See Ropes & Gray, supra at 413-414. The judge did not abuse her discretion by allowing in part the defendant's special motion to dismiss.
Russell also claims that the judge used an improper standard to rule on the special motion to dismiss. Rather than the 'no arguable basis in law' standard set out in G. L. c. 184, § 15(c), Russell argues the land court used a harsher standard. We find no merit to this argument. The judge cited to the statute and standard in her order, and we have no reason to doubt that that is the standard she used.
2. Attorney's fees. Russell next argues that the Land Court improperly awarded attorney fees to the defendants because not all claims were dismissed. We disagree. Section 15(c) of c. 184 provides for an award of costs and reasonable attorney's fees where a party's claims underlying a notice of lis pendens are found to be frivolous. 'While G. L. c. 184, § 15, differs from the anti-SLAPP statute in some respects, both are designed to provide protection from certain types of suits.' Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81-82 (2005) (footnote omitted). Attorney's fees have been awarded in anti-SLAPP matters where there was only a partial grant of a special motion to dismiss. See Wenger v. Aceto, 451 Mass. 1, 9 n.10 (2008). See also Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 244 (2008) ('The moving party need not prevail on all counts to qualify for an award'). The same award is available under G. L. c. 184, § 15, and shall be determined by the judge.
3. Ex parte motion. For the first time on appeal, Russell argues that because the defendants were present when the memorandum of lis pendens was granted, they are not entitled to use the remedy of a special motion to dismiss. However, given that Russell did not argue this below, it has waived its right to argue this issue on appeal. See Kennie v. Natural Resource Dept. Of Dennis, 451 Mass. 754, 760 n.13 (2008); Horner v. Boston Edison Co., 45 Mass. App. Ct. 139, 141 n.2 (1998).
Russell argued, in its reply brief, that the defendants have not shown that Russell did not present this argument before the Land Court. At oral argument, counsel for Russell reluctantly admitted that the argument had not been raised below. See Mass.R.Prof.C. 3.3(a)(1), 426 Mass. 1383 (1998) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal).
Order dated December 3, 2010, on special motion to dismiss pursuant to G. L. c. 184, § 15, affirmed.
By the Court (Grasso, Smith & Meade, JJ.),