Heard: February 5, 2018. 
action commenced in the Superior Court Department on October
17, 2016. A special motion to dismiss was heard by Renee P.
A. Assad (Robert M. Novack also present) for the defendant.
E. McLaughlin, Jr., for the plaintiff.
Present: Green, C.J., Henry, & Singh, JJ.
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 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 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.
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. 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 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. 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").
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,
we raised the question of timeliness of the defendant's
appeal, and invited the parties to submit supplemental
memoranda addressing the question.
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).
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 complaint pursuant to the statute. 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.
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. The defendant's notice of appeal from
the order denying his special motion to dismiss and
dissolution of a lis pendens was filed over a month after the
thirty-day appeal period had expired. The appeal period, set
by statute, cannot be enlarged. 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 ...