The Appeals Court recently awarded nearly $20,000 in attorneys’ fees – the full amount sought – to a developer whose project was delayed for several years by the serial appeals of a so-called “10 Citizens” group opposed to the project. (Disclosure: I am real estate counsel to the developer, and my colleagues Don Pinto and Erica Mastrangelo handled the litigation, including the successful motion for attorneys’ fees).
The project is a mixed-use development on formerly contaminated land in Rockport, Massachusetts. In February, 2007, the project received an approval known as an Order of Conditions (OOC) from the Rockport Conservation Commission. The plaintiff “10 Citizens” group – not even one member of which actually lives in Rockport – twice attempted to appeal the OOC to the Massachusetts Department of Environmental Protection (DEP), using DEP’s administrative appeal process. (Followers of development on the North Shore will no doubt recognize the name of the lead appellant, Stevan Goldin, who has filed appeals in many waterfront projects using this device). DEP dismissed the group’s administrative appeals, and in October, 2007, the group appealed those dismissals to Superior Court. In October, 2008, the Superior Court granted our motion to dismiss the court appeal based on the group’s “unreasonable delay” in prosecuting the case. The group then appealed that ruling to the Appeals Court, where we sought not only dismissal of this further appeal, but also an award of our client’s appellate attorneys’ fees on the ground that the appeal was frivolous and had been filed solely to further delay the project. In a March, 2010 decision, the Appeals Court dismissed this further appeal and invited us to file a separate motion to recover our client’s attorneys’ fees. We did so promptly, and last week the Appeals Court finally allowed that motion and awarded our client 100% of its fees – $19,689.20.
It’s important to note that, while the statute that empowers all courts to impose sanctions for the filing of frivolous claims – M.G.L. c. 231, § 6F – creates a high, often insurmountable bar (the defendant must prove that the claim has no factual or legal support whatsoever and that it was brought in bad faith), there is a separate rule that gives the Appeals Court and the Supreme Judicial Court more leeway with respect to appeals. Rule 25 of the Massachusetts Rules of Appellate Procedure, entitled “Damages for Delay,” simply says that if an appellate court decides that an appeal is frivolous, “it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law.” It was this rule under which the Appeals Court awarded our client its appellate attorneys’ fees in the case at hand.
As far as we know, this is the first time a Massachusetts court has awarded attorneys’ fees to a developer as a sanction against a “10 Citizens” group for filing a frivolous appeal. This will be a salutary development if it emboldens trial courts to more carefully scrutinize claims made by such groups (at least where it appears the group may be asserting groundless claims solely to hold up or kill a project), and if it deters citizens from blithely joining such groups (which often are organized by one or two highly motivated ringleaders like Mr. Goldin) without first satisfying themselves that the group’s claims have some factual and legal basis.