Heard: June 5, 2019.
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.
M. Bovenzi for the plaintiff.
Gregory W. Wheeler for the defendants.
Present: Wolohojian, Milkey, & Hand, JJ.
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 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.
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). Ferguson signed the form as the buyer,
and Maxim, signing as seller, indicated acceptance of the
offer. 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.
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. 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 terminate
all negotiations. Shortly thereafter, with this suit pending,
the defendants sold the property to a third party.
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. 
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 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." This appeal followed.
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) .
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,
" 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)
. 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 real property or the use and occupation
thereof," the judge "shall" make a finding to
that effect and endorse the lis pendens. 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,  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" any "frivolous" action or claim on
which a lis pendens is based.' 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) .
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 dismiss and, if the judge
allows the special motion, § 15 (c) mandates an award of
costs and reasonable attorney's fees to the moving
party. 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) .
special motion to ...