Ferguson v. Maxim ( 2019 )


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    18-P-1098                                             Appeals Court
    DAVID FERGUSON   vs.   JOYCE D. MAXIM & others.1
    No. 18-P-1098.
    Worcester.       June 5, 2019. - November 6, 2019.
    Present:   Wolohojian, Milkey, & Hand, JJ.
    Lis Pendens. Practice, Civil, Motion to dismiss, Lis pendens
    notice. Real Property, Purchase and sale agreement,
    Condition subsequent, Specific performance. Contract,
    Offer and acceptance. Agency.
    Civil action commenced in the Superior Court Department on
    November 9, 2017.
    A special motion to dismiss and a motion for dissolution of
    a memorandum of lis pendens were heard by Jane E. Mulqueen, J.
    Thomas M. Bovenzi for the plaintiff.
    Gregory W. Wheeler for the defendants.
    HAND, J.    The plaintiff, David Ferguson, alleged that he
    and defendant Joyce D. Maxim had a binding agreement for the
    sale of property located in Leominster that at the time was
    1 Dolores Doherty; Sandra Lolli; Johanna Dyer, also known as
    Joanna Dyer; and Marcelyn Petricca.
    2
    owned by the defendants.     He appeals from (1) the order allowing
    a special motion to dismiss his complaint, and (2) the
    dissolution of a memorandum of lis pendens he obtained in
    relation to the property.    We conclude that the judge erred in
    dismissing the complaint, but affirm the dissolution of the
    memorandum of lis pendens.
    Background.   Based on the parties' verified pleadings and
    affidavits, we recite the following factual allegations.     See
    G. L. c. 184, § 15 (c).    In August 2017, Maxim accepted
    Ferguson's offer to purchase (offer) property located in
    Leominster for $245,000.     The form used to memorialize the offer
    was entitled "contract to purchase real estate"; among other
    provisions, it identified the property, stated the purchase
    price and deposit terms, specified the time and place of
    closing, and set a deadline by which the parties were to execute
    a purchase and sale agreement (purchase and sale).2    Ferguson
    signed the form as the buyer, and Maxim, signing as seller,
    2 The offer dictated that the buyer and the seller "shall,
    on or before . . . September 5, 2017[,] execute the Standard
    Purchase and Sale Agreement of the MASSACHUSETTS ASSOCIATION OF
    REALTORS or substantial equivalent which, when executed, shall
    become the entire agreement between the parties and this Offer
    shall have no further force and effect." Underneath the title
    of the document are the words "Binding Contract."
    3
    indicated acceptance of the offer.3    Although the parties dispute
    the point, according to Ferguson's affidavit, when Ferguson
    signed the offer, he was unaware that Maxim was only one of five
    owners of the property.
    Ferguson and the defendants, through counsel, began to
    negotiate the terms of a purchase and sale.    The first draft,
    prepared by the defendants' attorney, was not circulated until
    after the purchase and sale deadline had passed, and the
    negotiations continued well past the date set in the offer for
    its execution.4   At different times, counsel for both Ferguson
    and the defendants suggested extending the purchase and sale
    deadline; the record does not indicate that any extensions ever
    were explicitly granted or denied.    On September 27, 2017,
    however, the defendants' attorney attempted to cease
    negotiations, "given the fact that we are well beyond our
    [purchase and sale] date."    Less than one week later, the
    defendants' attorney sought to "resurrect [negotiations]."     The
    discussions about the purchase and sale continued for another
    week before the defendants' attorney abruptly notified
    Ferguson's attorney that the defendants once again wanted to
    3 The first page of the offer identified the "BUYER(S)" as
    "David Ferguson or Assign"; the corresponding space for
    identification of the seller was left blank.
    4   We do not have details of the negotiations.
    4
    terminate all negotiations.    Shortly thereafter, with this suit
    pending, the defendants sold the property to a third party.
    Ferguson filed the underlying complaint seeking specific
    performance of the offer and moved for approval of a memorandum
    of lis pendens (lis pendens).   The defendants unsuccessfully
    opposed the motion.   Following the endorsement of the lis
    pendens, the defendants filed a special motion to dismiss the
    complaint, pursuant to G. L. c. 184, § 15 (c), and also moved to
    dissolve the lis pendens.5,6
    After a hearing, a different judge allowed the defendants'
    motions.   Considering the special motion to dismiss the
    complaint, the judge determined that the "complaint was devoid
    of information regarding the ongoing negotiations toward the
    [purchase and sale]; Ferguson's [failure] to negotiate the
    [purchase and sale] in a timely manner; Ferguson's knowledge
    that all five sellers needed to be in agreement [concerning the
    purchase and sale]; and the fact that negotiations were
    5 The defendants sold the property at issue to a third party
    while the lis pendens was in place and on record at the registry
    of deeds. At oral argument, it was disclosed that the third
    party subsequently sold the property to a fourth party. The
    parties have not addressed, and therefore we do not decide,
    whether the subsequent buyers were bona fide purchasers for
    value or, if so, how that might affect the viability of
    Ferguson's complaint as currently drafted.
    6 The defendants also sought attorney's fees and costs
    associated with the special motion to dismiss. See G. L.
    c. 184, § 15 (c).
    5
    terminated."   Concluding that the omission of these allegations
    "substantially undermined the factual basis for the complaint[,
    and in] fact, the omitted facts establish[ed] that the claims
    [were] devoid of reasonable factual support or arguable basis in
    law," the judge allowed the defendants' special motion to
    dismiss.   In dissolving the lis pendens, the judge cited two
    grounds:   (1) Ferguson's failure to include in his complaint a
    certification, required pursuant to G. L. c. 184, § 15 (b), that
    he had read the complaint and that "no material facts [had] been
    omitted" from it; and (2) Ferguson's failure to disclose in the
    complaint "all material facts."7   This appeal followed.
    Discussion.    Ferguson argues that the special motion to
    dismiss should not have been allowed because his complaint was
    not "frivolous."    G. L. c. 184, § 15 (c).   Additionally, he
    contends that because the underlying action affected "the title
    to the real property or the use and occupation thereof," and
    because the affidavits he filed in connection with the
    defendants' special motion to dismiss demonstrated that he could
    provide the missing certification and factual allegations, the
    judge abused her discretion when she allowed the defendants'
    motion to dissolve the lis pendens without allowing him to make
    those amendments.    See G. L. c. 184, § 15 (c).
    7 The facts on which the judge focused here were identical
    to those underpinning her dismissal of Ferguson's complaint.
    6
    Statutory procedure.    A lis pendens is a written notice
    that alerts prospective buyers of property to pending lawsuits
    that claim an interest in that property.    See Wolfe v. Gormally,
    
    440 Mass. 699
    , 702 (2004).    General Laws c. 184, § 15, which
    codifies the process for obtaining a lis pendens, requires as a
    first step that a plaintiff file a verified complaint "nam[ing]
    as defendants all owners of record,"8 and including, as we
    discuss in more detail infra, the claimant's sworn certification
    "that the complainant has read the complaint, that the facts
    stated therein are true and that no material facts have been
    omitted therefrom."    G. L. c. 184, § 15 (b).9   Having filed the
    required complaint, the plaintiff may move immediately and, at
    the plaintiff's option, on an ex parte basis, for issuance of a
    lis pendens.    G. L. c. 184, § 15 (b).   Presented with a
    statutorily compliant verified complaint in which the "subject
    matter of the action constitutes a claim of a right to title to
    8   And any lessors occupying the property under a written
    lease.    G. L. c. 184, § 15 (b).
    9   Section 15 (b) provides, in relevant part:
    "Any party seeking a memorandum of lis pendens under this
    section shall commence the underlying proceeding by means
    of a verified complaint or other complaint as is required
    under the rules of court to include a certification by the
    claimant made under the penalties of perjury that the
    complainant has read the complaint, that the facts stated
    therein are true and that no material facts have been
    omitted therefrom."
    7
    real property or the use and occupation thereof," the judge
    "shall" make a finding to that effect and endorse the lis
    pendens.10   G. L. c. 184, § 15 (b).   The judge's discretion in
    this regard is limited:   "once the judge determines that the
    subject matter of the action concerns an interest in real
    estate[,] . . . the allowance or denial of a memorandum of lis
    pendens hinges on the nature of the claim, not the merits
    thereof."    DeCroteau v. DeCroteau, 
    90 Mass. App. Ct. 903
    , 905
    (2016).   Otherwise, a judge may decline to endorse a statutorily
    compliant motion only if the judge orders "the temporary
    equitable relief as will preserve the status quo pending further
    proceedings."   G. L. c. 184, § 15 (b).   Recognizing the
    potentially harsh consequences of a lis pendens,11 the
    Legislature's 2002 amendments to § 15 included, in § 15 (c), an
    expedited mechanism for dissolving a lis pendens; the statute
    also permits a defendant to bring a "special motion to dismiss"
    10If the motion is allowed ex parte, the judge is required
    to make additional findings "that either (1) the defendant is
    not then subject to the jurisdiction of the court in that
    action, or (2) there is a clear danger that the defendant, if
    notified in advance of the endorsement of the memorandum, will
    convey, encumber, damage or destroy the property or the
    improvements thereon." G. L. c. 184, § 15 (b).
    11Including, among others, the fact that if a sale occurs
    after a lis pendens has been recorded, the buyer takes subject
    to whatever judgment may issue in the pending lawsuit. See
    
    Wolfe, 440 Mass. at 702
    .
    8
    any "frivolous" action or claim on which a lis pendens is
    based.12,13   St. 2002, c. 496, § 2.   See G. L. c. 184, § 15 (c);
    
    Wolfe, 440 Mass. at 705
    .    For the purposes of § 15 (c), a claim
    is "frivolous" if "(1) it is devoid of any reasonable factual
    support; or (2) it is devoid of any arguable basis in law; or
    (3) the action or claim is subject to dismissal based on a valid
    legal defense such as the statute of frauds."     G. L. c. 184,
    § 15 (c).
    In ruling on a special motion to dismiss, a judge considers
    all of the parties' verified pleadings and affidavits.     See
    G. L. c. 184, § 15 (c).    Discovery is stayed on the filing of a
    special motion to dismiss14 and, if the judge allows the special
    12General Laws c. 184, § 15 (c), establishes an expedited
    method for obtaining relief from an ex parte order: "the court
    shall hear the motion forthwith and in any event not later than
    [three] days after the date on which notice of the motion was
    given to the claimant." We do not, however, read the entirety
    of § 15 (c), specifically the special motion to dismiss
    procedure contained therein, to be limited to situations in
    which the lis pendens was endorsed on an ex parte basis.
    13In turn, any party aggrieved by a ruling under § 15 (c)
    may pursue an interlocutory appeal pursuant to G. L. c. 231,
    § 118, second par. See G. L. c. 184, § 15 (d). See also
    Galipault v. Wash Rock Invs., LLC, 
    65 Mass. App. Ct. 73
    , 81
    (2005) (record on appeal must contain reasonable support for
    judge's factual findings). Cf. DeLucia v. Kfoury, 93 Mass. App.
    Ct. 166, 168 (2018), quoting Mass. R. A. P. 15 (c), 
    365 Mass. 859
    (1974) (single justice lacks authority to "determine an
    appeal or other proceeding").
    14However, "the court, on motion and for good cause shown,
    may order that specified discovery be conducted." G. L. c. 184,
    § 15 (c).
    9
    motion, § 15 (c) mandates an award of costs and reasonable
    attorney's fees to the moving party.15   In effect, the special
    motion to dismiss offers defendants whose property has been
    encumbered by a lis pendens a speedy and cost-effective method
    of addressing frivolous claims and removing an unfounded lis
    pendens.   See G. L. c. 184, § 15 (c).
    Defendants' special motion to dismiss the complaint.     A
    special motion to dismiss pursuant to G. L. c. 184, § 15 (c),
    applies only to an action or claim supporting a lis pendens, but
    it shares some features with a special motion to dismiss
    pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute:     like
    a special motion to dismiss pursuant to § 59H, and unlike a
    motion pursuant to Mass. R. Civ. P. 12 (b) (6), 
    365 Mass. 754
    (1974), a special motion to dismiss under § 15 (c) requires the
    motion judge to consider alleged facts beyond the plaintiff's
    initial pleading and, based on those allegations, to determine
    whether the plaintiff's claims are devoid of a factual or legal
    basis.    Compare G. L. c. 184, § 15 (c), and G. L. c. 231, § 59H,
    with Mass. R. Civ. P. 12 (b) (6).   In the context of a special
    motion to dismiss pursuant to § 15 (c), the burden is on the
    15"If the court allows the special motion to dismiss, it
    shall award the moving party costs and reasonable attorney's
    fees, including those incurred for the special motion, any
    motion to dissolve the memorandum of lis pendens, and any
    related discovery." G. L. c. 184, § 15 (c).
    10
    defendant 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."16
    G. L. c. 184, § 15 (c).   See Benoit v. Frederickson, 
    454 Mass. 148
    , 156 (2009) (applying preponderance of evidence standard to
    special motion to dismiss under anti-SLAPP statute).      As with a
    special motion to dismiss pursuant to § 59H, "[t]he question to
    be determined by a judge in deciding a special motion to dismiss
    [under § 15 (c)] is not which of the parties' pleadings and
    affidavits are entitled to be credited or accorded greater
    weight," but whether the party with the burden of proof (here,
    the defendants) has shown that the claim made by the moving
    party was devoid of any reasonable factual support or arguable
    basis in law.   Benoit, supra at 154 n.7.   We review the motion
    judge's determination for an abuse of discretion.   See
    Reichenbach v. Haydock, 
    92 Mass. App. Ct. 567
    , 572 n.14 (2017).
    See also Galipault v. Wash Rock Invs., LLC, 
    65 Mass. App. Ct. 73
    , 82 (2005) (standard of review under § 15 [c] is analogous to
    16In this, § 15 (c) differs from § 59H: in the anti-SLAPP
    context, the special movant bears the initial burden of
    demonstrating that the nonmovant's claims are based solely on
    the movant's petitioning activity. Blanchard v. Steward Carney
    Hosp., Inc., 
    477 Mass. 141
    , 147-148 (2017). If the special
    movant makes this showing, the burden of proving that the
    petitioning activity lacked factual or legal support shifts to
    the nonmovant. See 
    id. at 148.
                                                                          11
    that of special motion to dismiss pursuant to G. L. c. 231,
    § 59H).
    The claim tested by the special motion to dismiss in this
    case, given Ferguson's complaint for specific performance of the
    offer, is whether the defendants entered into and then breached
    an enforceable contract with Ferguson.     See Perroncello v.
    Donahue, 
    448 Mass. 199
    , 204 (2007) (specific performance and
    damages are alternative remedies for breach of contract).       A
    similar question whether and when a signed offer is a binding
    contract was the heart of the dispute in McCarthy v. Tobin, 
    429 Mass. 84
    (1999), and we are guided by the Supreme Judicial
    Court's ruling in that case.    In McCarthy, the plaintiff and the
    defendant signed an offer that, among other things, identified
    the property to be sold and the purchase price,17 but that
    provided that the offer was "[s]ubject to a [purchase and sale]
    satisfactory to Buyer and Seller," to be executed by a specified
    date and time.   
    Id. at 85.
       The parties failed to agree on a
    purchase and sale until after the stated deadline; although the
    plaintiff ultimately signed the purchase and sale, the defendant
    did not, and instead, sold the property to a third party.       See
    
    id. at 85-86.
       The offer reflected the parties' present
    17The offer also included "deposit requirements, limited
    title requirements, and the time and place for closing," as well
    as a deadline for execution of a purchase and sale. 
    McCarthy, 429 Mass. at 85
    .
    12
    intention to be bound, and so was a "firm offer, the acceptance
    of which bound [the defendant] to sell and [the plaintiff] to
    buy the subject property."     
    Id. at 88.
      The parties having
    agreed on all material terms before executing the offer, "it
    [could have been] inferred that the purpose of a final document
    which the parties agree to execute [i.e., the purchase and sale,
    was] to serve as a polished memorandum of an already binding
    contract [i.e., the offer]" (citation omitted).     
    Id. at 87.
    Distinguishing McCarthy from this case, however, is the fact
    that the offer in McCarthy expressly conditioned its own
    enforceability on the subsequent and timely execution of a
    purchase and sale; accordingly, in that case, the failure to
    execute the purchase and sale "extinguish[ed]" the parties'
    obligations under the offer.     
    Id. at 88.
      Because the court
    ultimately concluded that the defendant waived the condition
    subsequent, i.e., the deadline to execute a purchase and sale,
    the plaintiff was entitled to specific performance of the offer.
    See 
    id. at 88-89.
    The allegations in Ferguson's verified pleadings and
    affidavits in this case support a finding that in executing the
    offer, Maxim and Ferguson intended to enter into a binding
    contract in which all material terms of the property sale were
    established; the defendants' allegations do not fatally
    undermine them.     Here, as in McCarthy, the offer attached to the
    13
    complaint identified a buyer and a seller; specified a purchase
    price; established a date, time, and place for closing; and
    appeared to be fully executed.    See 
    McCarthy, 429 Mass. at 85
    .
    Unlike McCarthy, while the offer here called for the later
    execution of a purchase and sale, the offer's enforceability
    does not appear to have been conditioned on that future
    agreement.   Cf. 
    id. at 85
    (offer provided that parties'
    obligations to each other were "[s]ubject to" execution of
    satisfactory purchase and sale that "shall" be signed by
    specific date).    Finally, even were there a condition
    subsequent, the defendants very well may have waived that
    condition by continuing to negotiate the purchase and sale past
    the deadline listed in the offer to execute that document.     See
    
    id. at 88-89.
    Furthermore, the evidence provided reasonable factual
    support and arguable legal basis for Ferguson's argument that
    Maxim accepted the offer with the apparent authority to act for
    all the sellers.    See Theos & Sons, Inc. v. Mack Trucks, Inc.,
    
    431 Mass. 736
    , 742 (2000) ("An agency relationship is created
    when there is mutual consent, express or implied, that the agent
    is to act on behalf and for the benefit of the principal, and
    subject to the principal's control"); Hudson v. Massachusetts
    Prop. Ins. Underwriting Ass'n, 
    386 Mass. 450
    , 457 (1982)
    (apparent authority exists where principal acts in way that
    14
    reasonably causes third person to believe that agent has
    authority to act for principal).   Specifically, Ferguson's
    verified complaint and the relevant affidavits aver that, (1)
    before the offer was executed, the five owners hired two brokers
    to market and to sell the property; (2) Ferguson's broker made
    an offer to the owners' brokers, which was apparently accepted
    by the only owner identified to Ferguson by the brokers; (3)
    thereafter, all five owners became aware of Ferguson's offer;
    and (4) the other four owners nonetheless permitted Maxim to be
    the only seller identified in the purchase and sale.      See Licata
    v. GGNSC Malden Dexter LLC, 
    466 Mass. 793
    , 801 (2014) (apparent
    authority must be based on words and conduct of principal).
    These allegations provided factual and legal support for
    Ferguson's argument that the defendants retained brokers and
    authorized them to speak on their behalf, and that those brokers
    indicated Maxim was the person authorized to accept the offer.
    That evidence could support a finding that Ferguson remained
    unaware of any sellers other than Maxim and, if other sellers
    existed, that he could reasonably have believed that Maxim was
    authorized to act for all of them.18   See 
    id. (agent's 18Although
    these facts were disputed, "[t]he mere
    submission of opposing affidavits . . . could not, in these
    circumstances, have established that the [claim] was 'devoid of
    any reasonable factual support or any arguable basis in law'"
    (citation omitted). 
    Benoit, 454 Mass. at 154
    n.7.
    15
    representations, with principal's authority to make such
    representations, can establish apparent authority).
    Viewing the offer as the parties' completed agreement for
    the sale of the Leominster property, the purchase and sale would
    have been merely "a polished memorandum of an already binding
    contract" (citation omitted).   
    McCarthy, 429 Mass. at 87
    .   The
    status of the later negotiations would not be essential to the
    issue under consideration -– the enforceability of the offer –-
    and so were not material at this stage.19   To the extent that the
    judge decided otherwise, her determination was based on either
    the use of an incorrect legal standard, or the erroneous (at
    this stage of the proceedings) drawing of legal conclusions that
    (1) the offer was not binding, and (2) Maxim did not have the
    authority to sign the offer on behalf of the other owners.   See
    
    Licata, 466 Mass. at 801-802
    (apparent authority requires
    factual determination of written or spoken words or conduct of
    principal, and legal determination whether third party
    reasonably understood agent to be acting on principal's behalf);
    Kurker v. Shoestring Props. Ltd. Partnership, 
    68 Mass. App. Ct. 644
    , 654-656 (2007) (enforceability of offer depends on legal
    19"A material fact is one that is significant or essential
    to the issue or matter at hand," or, put another way, is a fact
    "essential to [an] element in [the] plaintiff's case"
    (quotations and citations omitted). McMann v. McGowan, 71 Mass.
    App. Ct. 513, 520 (2008).
    16
    analysis of intent of parties, language in contract, and whether
    all material terms agreed upon and all conditions precedent
    satisfied).
    Even if the facts on which the judge focused had been
    material, however, Ferguson's failure to include them in the
    verified complaint did not deprive his claims of factual or
    legal support,20 distinguishing the instant case from those like
    McMann v. McGowan, 
    71 Mass. App. Ct. 513
    , 520 (2008), and
    
    Galipault, 65 Mass. App. Ct. at 82-83
    .   In 
    McMann, supra
    , the
    parties' contract defined the only permissible method by which
    20Indeed, the facts on which the judge focused do not
    directly contradict Ferguson's allegations. As to Ferguson's
    awareness of sellers other than Maxim, the listing broker
    averred that he informed the "selling broker" that the other
    four owners would have to sign the purchase and sale. That
    statement is not inconsistent with Ferguson's statement that he
    did not know about the other sellers before the offer was
    executed, and does not otherwise undermine either Ferguson's
    claim to have believed that Maxim had the "full power and
    authority to perform SELLER'S obligations under the [offer]" or
    his argument that the offer was the legally significant
    agreement. These are factual questions to be resolved in the
    trial court.
    We acknowledge that there will be instances, not present
    here, where the omitted facts will directly contradict the
    allegations contained in a plaintiff's complaint, and the judge
    will have to resolve that conflict in some manner. Although we
    need not reach that issue here, we observe that the best
    practice in such a situation, in the limited circumstances of a
    special motion to dismiss, may be to hold a hearing and, if
    necessary, allow limited discovery on the facts in dispute. See
    G. L. c. 184, § 15 (c) ("the court, on motion and for good cause
    shown, may order that specified discovery be conducted"). See
    also 
    Benoit, 454 Mass. at 155-157
    (Cordy, J., concurring).
    17
    the parties could deliver notices under their purchase and sale;
    the omitted fact, which was undisputed, was the plaintiff's
    failure to provide notice in the way that complied with the
    terms of the contract.   As the plaintiff's case turned on that
    missing fact, the judge was correct in allowing the special
    motion to dismiss the plaintiff's complaint.    
    Id. The plaintiffs
    in Galipault, supra at 74-76, claimed that they were
    entitled to rescission of a real estate transaction based on a
    right of first refusal contained in the master deed of the
    condominium at issue.    Their verified complaint omitted
    undisputed facts about their knowledge of the sale of units
    subject to that right of first refusal and of the plaintiffs'
    waiver of that right, and therefore dismissal of the plaintiffs'
    claim was likewise proper because the claim could not survive in
    the face of those omitted facts.    See 
    id. at 83.
       Here, by
    contrast, adding the omitted facts into the equation does not
    foreclose the possibility that Ferguson's legal theory is
    correct, i.e., that the offer was an enforceable contract to
    which Maxim had the authority to bind the other sellers.
    Finally, although the judge's dismissal of Ferguson's
    complaint was not based on the Statute of Frauds, the defendants
    raised the Statute of Frauds below as a bar to enforcement of
    the offer against the four defendants who did not sign the
    offer, and renew that argument on appeal.   We conclude that
    18
    although the Statute of Frauds may be a viable defense, its
    ultimate success depends on the resolution of disputed facts,
    e.g., whether the other four defendants indicated Maxim had the
    authority to sign on their behalf, see 
    Hudson, 386 Mass. at 457
    ,
    or whether Maxim's purchase and sale with Ferguson was ratified
    by the property's other owners, see 
    Licata, 466 Mass. at 802
    ,
    rulings that, as we note above, should not be made in deciding a
    special motion to dismiss.    See Citadel Realty, LLC v. Endeavor
    Capital N., LLC, 
    93 Mass. App. Ct. 39
    , 46 n.15 (2018) (potential
    defense does not remove factual or legal basis for claim).      It
    was error to allow the defendants' special motion to dismiss the
    complaint in this action.
    Dissolution of the lis pendens.     Although we conclude that
    the judge erred in allowing the special motion to dismiss, it
    does not necessarily follow that she erred in dissolving the lis
    pendens.
    As we discuss above, to obtain a lis pendens, a plaintiff
    must first file a verified complaint "includ[ing] a
    certification by the claimant made under the penalties of
    perjury that the complainant has read the complaint, that the
    facts stated therein are true and that no material facts have
    been omitted therefrom."    G. L. c. 184, § 15 (b).   The
    certification requirement in § 15 (b) "is not one of mere form."
    
    DeCroteau, 90 Mass. App. Ct. at 906
    .    Given the significant
    19
    consequences of a lis pendens, "strict compliance with the
    statutory prerequisites is required."     
    Id. Having filed
    a verified complaint, a plaintiff may then
    move for an endorsement of the lis pendens from a "justice of
    the court in which the action is pending."      G. L. c. 184,
    § 15 (b).   Once a lis pendens has been allowed, the statute
    provides for its dissolution "[i]f the court determines that the
    action does not affect the title to the real property."         G. L.
    c. 184, § 15 (c).
    In this case, the judge dissolved the lis pendens not only
    because she ruled that the complaint failed as a matter of law,
    requiring dismissal, but also because Ferguson failed to include
    the required certification.   Reviewing for either error of law
    or other abuse of discretion, 
    McMann, 71 Mass. App. Ct. at 519
    ,
    we discern neither in the judge's dissolution of the lis pendens
    based on Ferguson's failure to include the required
    certification.   See 
    DeCroteau, 90 Mass. App. Ct. at 906
    (affirming order denying motion for approval of lis pendens
    where plaintiff's complaint failed to include certification).
    As Ferguson concedes, his verified complaint did not include the
    certification required by § 15 (b).     Ferguson's argument that he
    20
    could have cured this omission by amending his complaint to
    include the necessary certification does not alter our view.21
    There was no error in the judge's dissolution of the lis
    pendens on this basis.
    21As an initial matter, Ferguson never moved to amend his
    complaint; the issue was raised at the end of his memorandum in
    support of his motion for reconsideration of the order allowing
    the defendants' special motion to dismiss. By the time Ferguson
    raised the issue, however, the complaint had been dismissed and
    the dismissal had been entered. Once the complaint was
    dismissed, Ferguson's ability to amend his complaint as a matter
    of right terminated. See Mass. R. Civ. P. 15 (a), 
    365 Mass. 761
    (1974). Cf. National Equity Props., Inc. v. Hanover Ins. Co.,
    
    74 Mass. App. Ct. 917
    , 918 (2009). Absent the consent of the
    defendants to the proposed amendment, Ferguson would have been
    required to seek court permission to add the missing
    certification by filing a motion to amend. Mass. R. Civ. P.
    15 (b), 
    365 Mass. 761
    (1974). Acknowledging that leave to amend
    "shall be freely given when justice so requires," Lipsitt v.
    Plaud, 
    466 Mass. 240
    , 254 (2013), quoting Mass. R. Civ. P.
    15 (a), the burden is on the proponent of the amendment to seek
    that leave, a step that Ferguson did not take. See Mass. R.
    Civ. P. 7 (b), 
    365 Mass. 748
    (1974) ("An application to the
    court for an order shall be by motion which, unless made during
    a hearing or trial, shall be made in writing, shall state with
    particularity the grounds therefor, and shall set forth the
    relief or order sought").
    As importantly, even had Ferguson made the required motion
    to amend, given the clear statutory requirement that the
    certification be included in the verified complaint, and the
    lack of any explanation for the omission, the judge would not
    have been obligated to allow the amendment. See Powell v.
    Stevens, 
    69 Mass. App. Ct. 87
    , 91-92 (2007) (determination
    whether to grant leave to amend claims after judgment entered
    lies within judge's broad discretion).
    21
    Conclusion.   So much of the judgment as allowed the special
    motion to dismiss is vacated.   The remainder of the judgment is
    affirmed.22
    So ordered.
    22Because we vacate so much of the judgment as allowed the
    special motion to dismiss, the award of attorney's fees to the
    defendants pursuant to G. L. c. 184, § 15 (c), is also vacated.
    

Document Info

Docket Number: AC 18-P-1098

Filed Date: 11/6/2019

Precedential Status: Precedential

Modified Date: 11/7/2019