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Ferguson v. Maxim

Appeals Court of Massachusetts, Worcester

November 6, 2019

DAVID FERGUSON
v.
JOYCE D. MAXIM & others. [1]

          Heard: June 5, 2019.

          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.

          Present: Wolohojian, Milkey, & Hand, JJ.

          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 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, 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 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 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) .

         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 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" 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 dismiss[14] and, if the judge allows the special 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 ...


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