Northwood Properties, LLC

In re
NORTHWOOD PROPERTIES, LLC,
Debtor
U NITED STATES BANKRUPTCY COURT
D ISTRICT OF M ASSACHUSETTS
Chapter 11
Case No. 05-18880-RS
MEMORANDUM OF DECISION ON
DEBTOR’S OBJECTION TO CLAIM OF RALPH TYLER
Before the Court is the Debtor’s objection to the claim of Ralph S. Tyler. For the reasons
set forth below, the Court now sustains the objection.
Background
Northwood Properties, LLC, the Debtor herein, is the owner and developer of a multi-
phase residential condominium development in Sudbury, Massachusetts (“Development”). Tyler
and two others opposed the Development before the Town of Sudbury Zoning Board and in a
Land Court action appealing the Board’s issuance of a building permit. In late 2000, their
opposition was purportedly settled by agreement, but Tyler himself was not a party to the
agreement. The settlement became a matter of dispute. The Debtor and the Development’s
condominium association (“Association”) sued Tyler and his two co-opponents (“Lawsuit”).
They responded with a special dismissal motion under Section 59H of Chapter 231 of the
Massachusetts General Laws, the so-called Anti-SLAPP statute. M.G.L.A. c. 231 § 59H. The
Superior Court granted the dismissal as to Tyler and one co-defendant but denied dismissal as to
the other co-defendant. The Court found that Tyler was, as he claimed, unaware of the
settlement agreement and that Northwood and the Association had sued Tyler solely on the basis
of his opposition to the issuance of a building permit for the Development.
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Thereafter, Tyler filed separate motions seeking attorney’s fees in respect of the
dismissal, one under Section 59H and one under Section 6F of Chapter 231 of the Massachusetts
General Laws. The latter requires an award of costs, expenses, attorney’s fees, and other
recoveries for claims in civil actions determined to be wholly insubstantial, frivolous, and not
advanced in good faith. M.G.L.A. c. 231 § 6F. The Superior Court denied both motions; Tyler
moved for reconsideration, and the Superior Court denied the motions for reconsideration. Since
then, Tyler has dedicated significant time and effort in seeking reversal of these denials and an
award of attorney’s fees.
The commencement of the Debtor’s Chapter 11 case (“Case”), on September 22, 2005,
suspended Tyler’s Superior Court activities regarding attorney’s fees. On November 21, 2005,
Tyler filed in the Case a claim for $622,270, consisting of $273,600 for legal costs in obtaining
dismissal of the Lawsuit and $348,670 for legal costs in seeking to obtain a fee award on account
of such dismissal. Tyler is not a lawyer and was not represented by a lawyer in the Lawsuit. He
calculates his attorney’s fee request by applying a presumed lawyer’s market hourly rate to the
time he alleges that he spent in both dismissal and fee award activities. He has not alleged that
he incurred any obligation to a lawyer for services in connection with these activities. In effect,
he contends that a non-lawyer pro se litigant may recover for his performance of legal services
on his own behalf in a Section 59H proceeding and in a Section 6F proceeding.
The Debtor contends (a) that there is no provision for attorney’s fees for non-lawyer pro
se litigants under Section 59H or Section 6F and (b) that there was no finding in the dismissal
decision that the Lawsuit was wholly insubstantial, frivolous, and not advanced in good faith, a
prerequisite for an award under Section 6F.
I heard the matter on June 20, 2006 and deferred ruling for the reasons described below.
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Plan
In July 2006, over the opposition of Tyler and two unit owners, I confirmed the Debtor’s
plan of reorganization (“Plan”) and the concomitant right of the Debtor to develop the remaining
phases and units of the Development. Under the Plan, Tyler’s claim is separately classified and
paid in full upon allowance.
Tyler and two unit owners appealed both confirmation of the Plan and extension of the
Development rights. I deferred ruling on Tyler’s claim pending these appeals. Ultimately, the
appeals were denied and the Plan objection and Development extension rulings were affirmed.
See In re Northwood Properties, LLC, 509 F.3d 15 (1st Cir. 2007). Accordingly, Tyler’s claim
is ripe for adjudication.
Framework
A claim filed in accordance with the Bankruptcy Code is deemed allowed unless a party
in interest objects. 11 U.S.C. § 502(a). A claim filed in accordance with the bankruptcy rules
constitutes prima facie evidence of the validity and amount of the claim. Bankruptcy Rule
3001(f). Notwithstanding this presumption of validity, the ultimate burden lies with the claimant
if the presumption is overcome.
The Section 59H Claim
Section 59H is intended to prevent generally meritless lawsuits brought by large private
interests to deter common citizens from exercising their political and legal rights or to punish
them for doing so. Durocraft Corp. v. Holmes Products Corp., 427 Mass. 156 (1998). Under
Section 59H, a party may bring a special dismissal motion asserting that the claim against such
party is based on that party’s exercise of his constitutional right of petition. The court is required
to grant such motion unless the non-moving party shows that the moving party’s exercise of its
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1 “If the party against whom such claims were asserted was not represented by counsel,
the court shall award to such party an amount representing his reasonable costs, expenses and
effort in defending against such claims.” G.L. c. 231, § 6F.
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right to petition was “devoid of any reasonable factual support or any arguable basis in law.”
Further, upon granting a special motion to dismiss, “the court shall award the moving party costs
and reasonable attorney’s fees, including those incurred for the special motion and any related
discovery matters.” Section 59H makes no provision for an award of attorney’s fees to a pro se
litigant. Nonetheless, Tyler claims $622,270 in attorney’s fees for his activities in the Lawsuit.
There are three problems with Tyler’s claim under Section 59H. First, an attorney’s fee
is customarily understood to be the charge to a client by a licensed attorney for legal services
performed for the client by that attorney. Tyler is not a licensed attorney and cannot perform
legal services for others, much less charge for them. Moreover, “[i]n its most general sense,”
says Black’s Law Dictionary, the word attorney “denotes an agent or substitute, or one who is
appointed and authorized to act in the place or stead of another.” Black’s Law Dictionary, 6 th
ed., p.129. Tyler is not licensed to practice law; nor, in representing himself, was he acting in
place of another. There is no sense in which Tyler can be deemed an attorney. Second, in G.L.
c, 231, § 6F, the legislature made express provision for recovery by a pro se litigant of
compensation for his or her own effort.1 The absence of similar language in Section 59H is an
indication that the legislature did not intend for pro se litigants to be compensated thereunder for
their efforts at legal self-defense. Third, Section 59H mandates recovery for attorney’s fees
incurred by a party. Tyler has nowhere contended that he has incurred any attorney’s fees; he
acknowledges that he was not represented by an attorney in this matter.
Accordingly, Tyler’s claim for attorney’s fees is not within the contemplation of Section
59H and without legal basis. “Attorney’s fees”constitute all but $3,070.00 of Tyler’s claim, the
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balance being a demand for “costs” for transcripts, copies, and court fees. Section 59H permits
compensation for the claimant’s costs; costs are not limited to those of the claimant’s attorney.
The Debtor articulates no objection to this component of Tyler’s claim; therefore, as to this
component, the presumption of validity is unrebutted, and the claim is therefore allowed in the
amount of $3,070.00.
The Section 6F Claim
Section 6F is intended to provide a remedy for claims in a civil action determined to be
wholly insubstantial, frivolous, and not advanced in good faith. M.G.L.A. c. 231, § 6F. 	See
Masterpiece Kitchen and Bath, Inc. v. Gordon, 425 Mass. 325 (1997).
Section 6F operates as follows: first, upon motion in a civil action, a court may find that
a claim made by a party represented by counsel is wholly insubstantial, frivolous, and not
advanced in good faith; second, in doing so, the court must include in the finding the specific
facts and reasons on which that finding is based; third, having made such finding, the court must
award an amount representing reasonable counsel fees and other costs and expenses incurred by
a party in defending against such claims; and fourth, if the aggrieved party is not represented by
counsel, the court must award such unrepresented party an amount representing his reasonable
costs, expenses, and effort in defending against such claims.
There are three problems with Tyler’s claim under Section 6F. First, in granting Tyler’s
special dismissal motion, the Superior Court made no finding that the claims of the Debtor
and/or the Association in the Lawsuit were “wholly insubstantial, frivolous and not advanced in
good faith.” Moreover, when Tyler asked the Court to amend its ruling to incorporate such a
finding, the Court expressly declined to do so. Thus, Tyler cannot meet a threshold requirement
for a Section 6F award, and this by itself is dispositive. Second, Tyler did not incur counsel fees
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2 Section 59H employs the term “attorney’s fees” while Section 6F employs the term
“counsel fees.” Neither term is defined. I construe them as interchangeable and intended to
mean the fees of a lawyer licensed to practice.
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in the Lawsuit, as noted above, since he is not himself a lawyer and was not represented by a
lawyer in the Lawsuit.2 Third, while Tyler may be entitled to “an amount representing his
reasonable . . . effort in defending against” the Lawsuit, that is not what he has claimed. His
claim is for attorney’s fees but, since he is not a licensed lawyer, his effort cannot be valued as a
lawyer’s. To find otherwise would be to permit a non-lawyer pro se litigant to circumvent both
the letter and the spirit of Section 6F, by treating such litigant’s effort as that of a lawyer even if
he is not. Therefore, even if Tyler were entitled to recovery, the recovery would be limited to an
amount representing “his reasonable costs, expenses and effort,” not the value of services that an
attorney might have rendered in the matter. For these reasons, Tyler’s claim is not within the
contemplation of Section 6F, and the Debtor’s objection to Tyler’s claim under Section 6F is
sustained.
Conclusion
A separate order will enter sustaining the Debtor’s objection and allowing Tyler’s claim
in the limited amount of $3,070.00.
Date: February 1, 2008 	_______________________________
Robert Somma
United States Bankruptcy Judge
cc: Ralph S. Tyler, Pro Se
Donald F. Farrell, Counsel to Northwood at Sudbury Condominium Trust
Eric K. Bradford, United States Trustee’s Office
Alan L. Braunstein, Counsel to Debtor
John J. Monaghan, Counsel to Tashmoo Cove Realty Inc.
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