Powell v. Stevens
866 N.E.2d 918, 69 Mass. App. Ct. 87 (2007)
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Rule of Law:
The filing of a lis pendens memorandum in connection with litigation affecting title to real estate falls within the absolute privilege afforded to judicial proceedings in Massachusetts, shielding the filer from claims of slander of title.
Facts:
- In 1986, Joanne Powell's decedent sold a property to Esther K. Stevens for $430,000, receiving a promissory note and a $350,000 mortgage.
- In August 1993, the decedent apparently discharged the mortgage.
- On April 26, 1996, the same day the decedent died in Ireland, Esther K. Stevens recorded the mortgage discharge.
- On March 2, 2000, Joanne Powell, as administratrix of the decedent's estate, filed a complaint alleging the mortgage discharge was fraudulently obtained and suing Esther K. Stevens and her son for breach of contract, rescission, and other claims.
- Simultaneously with filing the complaint, Powell obtained and recorded an ex parte lis pendens in the Suffolk County registry of deeds concerning the property.
- Esther K. Stevens and her son, who had guaranteed the original mortgage, counterclaimed against Powell for slander of title, citing the recording of the lis pendens.
Procedural Posture:
- On March 2, 2000, Joanne Powell, as administratrix, filed a complaint in Superior Court (trial court) against Esther K. Stevens and her son, alleging fraudulent mortgage discharge and asserting claims for breach of contract, rescission, and related causes of action.
- Simultaneously, Powell obtained and recorded an ex parte lis pendens.
- Stevens and her son answered the complaint and filed a counterclaim against Powell for slander of title based on the recording of the lis pendens.
- The case was bifurcated, and Powell's claims were tried to a jury first.
- At the close of Powell's case, the defendants successfully moved for a directed verdict.
- In May 2003, a judgment entered dismissing Powell's claims.
- In April 2004, Powell moved for summary judgment on the defendants' counterclaim for slander of title, which a different Superior Court judge allowed, dismissing the counterclaim.
- In June 2004, the defendants moved for reconsideration, requesting leave to amend their counterclaims to include claims for abuse of process, malicious prosecution, and fees under G. L. c. 231, § 6F.
- The Superior Court judge denied these motions, finding them untimely and that allowing post-judgment amendments would be futile and inequitable.
- The defendants timely appealed the summary judgment dismissal of their counterclaim and the denial of their motions for reconsideration to the Massachusetts Appeals Court.
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Issue:
Does the filing of a lis pendens memorandum in connection with litigation affecting the title to real estate fall within the absolute privilege afforded judicial proceedings in Massachusetts?
Opinions:
Majority - Laurence, J.
Yes, the filing of a lis pendens memorandum in connection with litigation affecting the title to real estate falls within the absolute privilege afforded judicial proceedings in Massachusetts. The court affirmed the lower court's dismissal of the slander of title counterclaim. The court adopted the reasoning of numerous other jurisdictions, which extend absolute privilege to the filing of a lis pendens provided the underlying action involves allegations affecting an ownership interest in the subject property. This extension is based on several rationales: (1) most publications in judicial proceedings enjoy absolute privilege; (2) a lis pendens's sole purpose is to provide constructive notice of pending litigation to prospective buyers; (3) the notice is incidental to, and has no existence apart from, the main action; and (4) recording a lis pendens is a republication of the judicial proceedings, thereby receiving the same privilege. The court viewed the lis pendens as functionally equivalent to other litigation instruments like injunctions and attachments, serving an important policy interest by preventing further disputes from uninformed parties. Furthermore, the court noted that alternative remedies exist for parties claiming harm, such as moving for dissolution of the lis pendens, seeking costs for frivolous claims under G. L. c. 184, § 15(c), or pursuing claims for abuse of process or malicious prosecution, making an additional cause of action based on the lis pendens filing unnecessary and potentially chilling its proper use. The court also upheld the denial of the defendants' motions for reconsideration to amend their counterclaims, finding them untimely, prejudicial, and futile, and agreeing with the judge's discretionary conclusion that a G. L. c. 231, § 6F hearing would be impractical due to the delay.
Analysis:
This case establishes a significant precedent in Massachusetts, aligning its stance on lis pendens with a majority of other jurisdictions by affording absolute privilege to these filings. This ruling provides greater certainty for litigants seeking to protect their interests in real property during ongoing disputes, reducing the risk of retaliatory slander of title claims. However, it also underscores the importance of utilizing existing statutory remedies for addressing frivolous or bad-faith litigation, such as motions to dissolve a lis pendens or claims for abuse of process, rather than relying on a direct challenge to the filing itself. The decision emphasizes the judicial system's interest in preventing unnecessary conflict and compounding lawsuits by ensuring potential purchasers are notified of property disputes.
