SJC: lis pendens statute provides for appellate fees.

Byline: Kris Olson

A party who prevails under the special motion to dismiss procedure of the lis pendens statute is entitled to an award of attorneys' fees not only in the trial court but also in the appellate courts, the Supreme Judicial Court has decided.

The relevant section of G.L.c. 184, 15(c) reads: "If the court allows the special motion to dismiss, it shall award the moving party costs and reasonable attorneys' fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery."

The defendant in DeCicco, et al. v. 180 Grant Street LLC had properly been awarded attorneys' fees and costs in the trial court, the SJC noted.

To resolve the question of whether 15(c) also applies to appellate attorneys' fees, the SJC looked to nearly identical relevant statutory language governing a special motion to dismiss pursuant to the "anti-SLAPP statute," G.L.c. 231, 59H.

The SJC said it had interpreted the anti-SLAPP statute's fee provision to apply to both trial and appellate court fees, including in the 2000 case McLarnon v. Jokisch.

With respect to the appellate attorneys' fees, the court in McLarnon stated that the statutory provisions for reasonable fees "would ring hollow if it did not necessarily include a fee for the appeal."

In a rescript opinion, the SJC said the same rationale applied in DeCicco.

"Not only is the language of the two statutes almost exactly the same, but, importantly, the underlying policies are essentially the same," the court said. "Both the lis pendens statute and the anti-SLAPP statute provide for a special motion to dismiss that is designed to weed out groundless litigation early on, and both are designed to ensure that the successful defendant is made whole by being reimbursed for the legal fees it has incurred in its defense of the summarily dismissed case."

Cause for pause

DeCicco makes clear that there is risk to litigants who are of a mind to tie up pieces of real estate in the hopes of negotiating a better deal, said the defendant's attorney, Jon C. Cowen of Boston.

In his client's case, the buyers wanted to go ahead with the sale of the property on terms that had not been fully agreed upon, Cowen said. When they did not get their way, they filed a lis pendens, which had the effect of prohibiting the sale of the property for two and a half years.

"This decision will give more pause to people who are considering making a less-than-legitimate...