DeLucia v. Kfoury

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17-P-609 Appeals Court

ANTHONY DeLUCIA vs. ROBERT G. KFOURY, trustee.1

No. 17-P-609.

Bristol. February 5, 2018. - April 25, 2018.

Present: Green, C.J., Henry, & Singh, JJ.

Lis Pendens. Appeals Court, Jurisdiction. Practice, Civil,
Interlocutory appeal, Enlargement of time.

Civil action commenced in the Superior Court Department on
October 17, 2016.

A special motion to dismiss was heard by Renee P. Dupuis,
J.

Bruce A. Assad (Robert M. Novack also present) for the
defendant.
Robert E. McLaughlin, Jr., for the plaintiff.

GREEN, C.J. In 2002, the Legislature rewrote G. L. c. 184,

§ 15, the so-called "lis pendens statute." See St. 2002,

c. 496, § 2. Among other changes, the amended statute provided

a procedural mechanism for a party aggrieved by approval of a

1 Of the RKG Realty Trust.
2

memorandum of lis pendens to file a special motion to dismiss

the action giving rise to the lis pendens if the action is

frivolous. See G. L. c. 184, § 15(c); Galipault v. Wash Rock

Investments, LLC, 65 Mass. App. Ct. 73, 81-82 (2005). In turn,

under G. L. c. 184, § 15(d), "[a]ny party aggrieved by a ruling

under [§ 15](c) or by the denial of an ex parte motion for a lis

pendens, may appeal pursuant to the first or second paragraphs

of section 118 of chapter 231." The present case illustrates a

trap for the unwary lurking in the interplay between the two

statutes, operating in conjunction with the rules governing the

practice of the single justice of this court. The defendant in

the present case sought, by special motion, to dismiss the

plaintiff's complaint, and then (after denial of his special

motion) sought review of that denial by a single justice of this

court by filing a petition under the first paragraph of G. L.

c. 231, § 118. Upon denial of relief (because the single

justice is without authority to dismiss a complaint), the

defendant filed in the Superior Court a notice of appeal

pursuant to the second paragraph of § 118. Because more than

thirty days had passed since the underlying order denying his

special motion to dismiss, the defendant first requested, and

obtained, an order from a judge of the Superior Court for an

enlargement of time to file the notice of appeal. Unfortunately

for the defendant, however, the Superior Court judge was without
3

authority to enlarge the time for appeal, and his order

purporting to do so was a nullity. We are thus constrained to

dismiss the appeal, as we are without jurisdiction to entertain

it.

Background. By complaint filed in the Superior Court, the

plaintiff asserted claims for breach of contract, breach of

fiduciary duty, and specific performance, arising out of a joint

venture between the plaintiff and the defendant for development

of property in Fall River owned by the defendant.2 The plaintiff

also filed an ex-parte motion for a memorandum of lis pendens,

which the judge allowed. The defendant moved to dissolve the

memorandum of lis pendens and filed a special motion to dismiss

the complaint pursuant G. L. c. 184, § 15(c). On January 31,

2017, the judge denied the defendant's motions. By petition

filed on March 1, 2017, within the thirty-day period prescribed

2Pursuant to the joint venture agreement, the plaintiff was
to recruit potential tenants for the property, and the property
was to be transferred to a limited liability company between the
parties upon consummation of a lease with a suitable tenant.
The property was then to be marketed for sale, with ninety
percent of any value above an established base price to be
allocated to the plaintiff. According to the allegations in the
complaint (which for purposes of the motion to dismiss and lis
pendens we accept as true), the plaintiff negotiated favorable
terms of a lease with Cumberland Farms, and presented the lease
to the defendant toward the end of the term established by the
joint venture agreement, only to have the defendant, in bad
faith, delay acceptance of the lease in order to enter the lease
with Cumberland Farms on his own, free of any obligation to
share profits with the plaintiff.
4

by G. L. c. 231, § 118, first par., the defendant then sought

interlocutory relief before a single justice of this court. On

March 2, 2017, that petition was denied, by reason of a lack of

authority by the single justice to grant the requested relief,

and the case was closed.3 See Mass.R.A.P. 15(c), 365 Mass. 859

(1974) ("a single justice may not dismiss or otherwise determine

an appeal or other proceeding").

On March 22, 2017, the defendant filed a motion for

reconsideration by the single justice, in which he asked the

single justice to refer the case to a full panel of this court

for consideration. On March 24, 2017, before any action had

been taken on the motion for reconsideration, the defendant

filed in the Superior Court a motion for an enlargement of time

to file a notice of appeal to a panel of the Appeals Court. A

judge of the Superior Court allowed the defendant's motion for

enlargement and, on March 30, 2017, the docket of the single

justice matter recorded an entry observing that "[a] review of

the trial court docket shows that the petitioner's motion to

file a late notice of appeal to a panel of the Appeals Court was

allowed; accordingly, no action is necessary." On April 4,

2017, the defendant filed in the Superior Court a notice of

appeal under G. L. c. 231, § 118, second par. At oral argument,

3 DeLucia vs. Kfoury, Appeals Court, No. 2017-J-0090 (March
2, 2017).
5

we raised the question of timeliness of the defendant's appeal,

and invited the parties to submit supplemental memoranda

addressing the question.

Discussion. As the single justice correctly observed, he

was without authority to dismiss the plaintiff's complaint, by

virtue of the provisions of Mass.R.A.P. 15(c). See also

Pemberton v. Pemberton, 9 Mass. App. Ct. 809, 809 (1980) ("[The]

power to render any judgment and to make any order that ought to

have been made open the whole case . . . rest[s] solely with a

panel of [t]hree justices who constitute a quorum to decide all

matters required to be heard by the appeals court") (internal

quotation marks omitted).

We are unpersuaded by the defendant's contention that G. L.

c. 184, § 15(d), should be construed to override the limitation

on the authority of the single justice, in order to give effect

to a legislative intent to provide an avenue for an "expedited

dissolution of an unjustified memorandum of lis pendens."

Galipault v. Wash Rock Investments, LLC, supra at 74. As a

threshold matter, the limitation on the authority of the single

justice imposed by Mass.R.A.P. 15(c) does not render the right

of appeal from a ruling under G. L. c. 184, § 15(c), either

illusory or a nullity; the single justice is empowered to grant

relief from any order allowing a special motion to dismiss a
6

complaint pursuant to the statute.4 The defendant is also

incorrect in his assertion that the Legislature must have

intended to allow the single justice to reverse an order denying

a special motion to dismiss, in order to avoid the longer time

period ordinarily required to pursue a panel appeal; nothing in

G. L. c. 184, § 15, says explicitly, or otherwise suggests, that

an order of the single justice directing dismissal of a

complaint shall be final, or could not thereafter be appealed to

the full court.

Having determined that the single justice correctly

determined that he was without authority to dismiss the

complaint, we turn to the question of the timeliness of the

present appeal. General Laws c. 231, § 118, second par., as

amended through St. 1987, c. 208, § 2, prescribes a thirty-day

appeal period.5 The defendant's notice of appeal from the order

denying his special motion to dismiss and dissolution of a lis

4 In that regard, the limitation on the authority of the
single justice operates in much the same manner as in the
circumstance of an appeal claiming that a trial court judge
erred in denying a motion to dismiss a complaint, or a motion
for summary judgment, on any other basis. Of course, in
appropriate cases the single justice may, as a matter of
discretion, refer a case for panel consideration. See, e.g.,
CUNA Mut. Ins. Soc. v. Attorney Gen., 380 Mass. 539, 540 (1980).

5 "A party aggrieved by an interlocutory order . . . may
appeal . . . to the appeals court. . . . An appeal . . . shall
be taken within thirty days of the date of the entry of the
interlocutory order." G. L. c. 231, § 118, second par.
7

pendens was filed over a month after the thirty-day appeal

period had expired. The appeal period, set by statute, cannot

be enlarged.6 See Morales v. Appeals Court, 427 Mass. 1009, 1010

(1998), quoting from Friedman v. Board of Registration in

Medicine, 414 Mass. 663, 665 (1993) ("[A] statutory appeal

period . . . cannot be overridden by a contrary rule of court

when the manner and time for effective filing of an appeal are

delineated in the statute"). See also, Manousos v. Sarkis, 382

Mass. 317, 322 (1981); McGrath v. McGrath, 65 Mass. App. Ct.

670, 671 (2006); Ben v. Schultz, 47 Mass. App. Ct. 808, 814-815

(1999). A timely notice of appeal is a jurisdictional

prerequisite to our authority to consider any matter on appeal.

Because the trial court lacked the authority to permit the

enlargement of time for filing the notice of appeal pursuant to

G. L. c. 231, § 118, the order purporting to do so was a

nullity. The notice of appeal was untimely, and we accordingly

dismiss the appeal.

As we observed in the introduction, the operation of the

lis pendens statute, together with the statute governing

interlocutory appeals and the rule governing the single justice

6 The trial court judge perhaps mistakenly enlarged the time
for filing the notice of appeal pursuant to Mass.R.A.P. 4(c), as
amended by 378 Mass. 928 (1979) ("Upon a showing of excusable
neglect, the lower court may extend the time for filing the
notice of appeal"). Where a statute prescribes a deadline, the
statute controls.
8

practice, can combine in circumstances such as those in the

present case to create a trap for the unwary.7 Such a

possibility does not, however, confer jurisdiction where none

exists. In any event, the consequences here are not as harsh as

those present in circumstances where a party by procedural

misstep loses the right to an adjudication on the merits; the

defendant remains entitled to assert in the Superior Court all

grounds on which he contends he should prevail. Moreover,

though we are without jurisdiction to consider the merits of the

present appeal, our review of the record and the arguments made

in the respective parties' briefs persuades us that the Superior

Court judge committed no abuse of discretion in denying the

special motion to dismiss; as set forth in the complaint, the

plaintiff has asserted a colorable claim that the defendant

acted in bad faith to deprive the plaintiff of an interest in

real property, after the plaintiff had exercised considerable

7 Indeed, it appears from the docket entry on the
defendant's motion for reconsideration that the single justice
may have declined to act on the request for referral of the
defendant's appeal for panel consideration based upon the belief
that the Superior Court order allowing an enlargement of time to
file a notice of appeal rendered such a referral unnecessary.
In appropriate circumstances where a party seeks review by the
single justice under the first paragraph of § 118 from the
denial of a special motion to dismiss, and where the single
justice believes the appeal may have merit, the single justice
may refer the appeal for panel consideration (thereby rescuing
the party from the procedural misstep), rather than dismissing
the petition. As we discuss below, the present appeal does not
appear to us to present such circumstances.
9

efforts and brought about considerable value in reliance on the

parties' joint venture agreement. Whether the plaintiff is

successful in establishing that claim in further proceedings in

the Superior Court remains to be seen.

Conclusion. For the foregoing reasons, the appeal is

dismissed as untimely.8

So ordered.

8 In the exercise of our discretion, we decline the
plaintiff's request for an award of appellate attorney's fees.