Ferguson v. Maxim

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18-P-1098 Appeals Court

DAVID FERGUSON vs. JOYCE D. MAXIM & others.1

No. 18-P-1098.

Worcester. June 5, 2019. - November 6, 2019.

Present: Wolohojian, Milkey, & Hand, JJ.

Lis Pendens. Practice, Civil, Motion to dismiss, Lis pendens
notice. Real Property, Purchase and sale agreement,
Condition subsequent, Specific performance. Contract,
Offer and acceptance. Agency.

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.

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

1 Dolores Doherty; Sandra Lolli; Johanna Dyer, also known as
Joanna Dyer; and Marcelyn Petricca.
2

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,

2 The offer dictated that the buyer and the seller "shall,
on or before . . . September 5, 2017[,] execute the Standard
Purchase and Sale Agreement of the MASSACHUSETTS ASSOCIATION OF
REALTORS or substantial equivalent which, when executed, shall
become the entire agreement between the parties and this Offer
shall have no further force and effect." Underneath the title
of the document are the words "Binding Contract."
3

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

3 The first page of the offer identified the "BUYER(S)" as
"David Ferguson or Assign"; the corresponding space for
identification of the seller was left blank.

4 We do not have details of the negotiations.
4

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

5 The defendants sold the property at issue to a third party
while the lis pendens was in place and on record at the registry
of deeds. At oral argument, it was disclosed that the third
party subsequently sold the property to a fourth party. The
parties have not addressed, and therefore we do not decide,
whether the subsequent buyers were bona fide purchasers for
value or, if so, how that might affect the viability of
Ferguson's complaint as currently drafted.

6 The defendants also sought attorney's fees and costs
associated with the special motion to dismiss. See G. L.
c. 184, § 15 (c).
5

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).

7 The facts on which the judge focused here were identical
to those underpinning her dismissal of Ferguson's complaint.
6

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

8 And any lessors occupying the property under a written
lease. G. L. c. 184, § 15 (b).

9 Section 15 (b) provides, in relevant part:

"Any party seeking a memorandum of lis pendens under this
section shall commence the underlying proceeding by means
of a verified complaint or other complaint as is required
under the rules of court to include a certification by the
claimant made under the penalties of perjury that the
complainant has read the complaint, that the facts stated
therein are true and that no material facts have been
omitted therefrom."
7

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"

10If the motion is allowed ex parte, the judge is required
to make additional findings "that either (1) the defendant is
not then subject to the jurisdiction of the court in that
action, or (2) there is a clear danger that the defendant, if
notified in advance of the endorsement of the memorandum, will
convey, encumber, damage or destroy the property or the
improvements thereon." G. L. c. 184, § 15 (b).

11Including, among others, the fact that if a sale occurs
after a lis pendens has been recorded, the buyer takes subject
to whatever judgment may issue in the pending lawsuit. See
Wolfe, 440 Mass. at 702.
8

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 dismiss14 and, if the judge allows the special

12General Laws c. 184, § 15 (c), establishes an expedited
method for obtaining relief from an ex parte order: "the court
shall hear the motion forthwith and in any event not later than
[three] days after the date on which notice of the motion was
given to the claimant." We do not, however, read the entirety
of § 15 (c), specifically the special motion to dismiss
procedure contained therein, to be limited to situations in
which the lis pendens was endorsed on an ex parte basis.

13In turn, any party aggrieved by a ruling under § 15 (c)
may pursue an interlocutory appeal pursuant to G. L. c. 231,
§ 118, second par. See G. L. c. 184, § 15 (d). See also
Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81
(2005) (record on appeal must contain reasonable support for
judge's factual findings). Cf. DeLucia v. Kfoury, 93 Mass. App.
Ct. 166, 168 (2018), quoting Mass. R. A. P. 15 (c), 365 Mass.
859 (1974) (single justice lacks authority to "determine an
appeal or other proceeding").

14However, "the court, on motion and for good cause shown,
may order that specified discovery be conducted." G. L. c. 184,
§ 15 (c).
9

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 dismiss the complaint. A

special motion to dismiss pursuant to G. L. c. 184, § 15 (c),

applies only to an action or claim supporting a lis pendens, but

it shares some features with a special motion to dismiss

pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute: like

a special motion to dismiss pursuant to § 59H, and unlike a

motion pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974), a special motion to dismiss under § 15 (c) requires the

motion judge to consider alleged facts beyond the plaintiff's

initial pleading and, based on those allegations, to determine

whether the plaintiff's claims are devoid of a factual or legal

basis. Compare G. L. c. 184, § 15 (c), and G. L. c. 231, § 59H,

with Mass. R. Civ. P. 12 (b) (6). In the context of a special

motion to dismiss pursuant to § 15 (c), the burden is on the

15"If the court allows the special motion to dismiss, it
shall award the moving party costs and reasonable attorney's
fees, including those incurred for the special motion, any
motion to dissolve the memorandum of lis pendens, and any
related discovery." G. L. c. 184, § 15 (c).
10

defendant to demonstrate, by a preponderance of the evidence,

that the plaintiff's claim is completely lacking in "reasonable

factual support . . . or . . . any arguable basis in law."16

G. L. c. 184, § 15 (c). See Benoit v. Frederickson, 454 Mass.

148, 156 (2009) (applying preponderance of evidence standard to

special motion to dismiss under anti-SLAPP statute). As with a

special motion to dismiss pursuant to § 59H, "[t]he question to

be determined by a judge in deciding a special motion to dismiss

[under § 15 (c)] is not which of the parties' pleadings and

affidavits are entitled to be credited or accorded greater

weight," but whether the party with the burden of proof (here,

the defendants) has shown that the claim made by the moving

party was devoid of any reasonable factual support or arguable

basis in law. Benoit, supra at 154 n.7. We review the motion

judge's determination for an abuse of discretion. See

Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 572 n.14 (2017).

See also Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct.

73, 82 (2005) (standard of review under § 15 [c] is analogous to

16In this, § 15 (c) differs from § 59H: in the anti-SLAPP
context, the special movant bears the initial burden of
demonstrating that the nonmovant's claims are based solely on
the movant's petitioning activity. Blanchard v. Steward Carney
Hosp., Inc., 477 Mass. 141, 147-148 (2017). If the special
movant makes this showing, the burden of proving that the
petitioning activity lacked factual or legal support shifts to
the nonmovant. See id. at 148.
11

that of special motion to dismiss pursuant to G. L. c. 231,

§ 59H).

The claim tested by the special motion to dismiss in this

case, given Ferguson's complaint for specific performance of the

offer, is whether the defendants entered into and then breached

an enforceable contract with Ferguson. See Perroncello v.

Donahue, 448 Mass. 199, 204 (2007) (specific performance and

damages are alternative remedies for breach of contract). A

similar question whether and when a signed offer is a binding

contract was the heart of the dispute in McCarthy v. Tobin, 429

Mass. 84 (1999), and we are guided by the Supreme Judicial

Court's ruling in that case. In McCarthy, the plaintiff and the

defendant signed an offer that, among other things, identified

the property to be sold and the purchase price,17 but that

provided that the offer was "[s]ubject to a [purchase and sale]

satisfactory to Buyer and Seller," to be executed by a specified

date and time. Id. at 85. The parties failed to agree on a

purchase and sale until after the stated deadline; although the

plaintiff ultimately signed the purchase and sale, the defendant

did not, and instead, sold the property to a third party. See

id. at 85-86. The offer reflected the parties' present

17The offer also included "deposit requirements, limited
title requirements, and the time and place for closing," as well
as a deadline for execution of a purchase and sale. McCarthy,
429 Mass. at 85.
12

intention to be bound, and so was a "firm offer, the acceptance

of which bound [the defendant] to sell and [the plaintiff] to

buy the subject property." Id. at 88. The parties having

agreed on all material terms before executing the offer, "it

[could have been] inferred that the purpose of a final document

which the parties agree to execute [i.e., the purchase and sale,

was] to serve as a polished memorandum of an already binding

contract [i.e., the offer]" (citation omitted). Id. at 87.

Distinguishing McCarthy from this case, however, is the fact

that the offer in McCarthy expressly conditioned its own

enforceability on the subsequent and timely execution of a

purchase and sale; accordingly, in that case, the failure to

execute the purchase and sale "extinguish[ed]" the parties'

obligations under the offer. Id. at 88. Because the court

ultimately concluded that the defendant waived the condition

subsequent, i.e., the deadline to execute a purchase and sale,

the plaintiff was entitled to specific performance of the offer.

See id. at 88-89.

The allegations in Ferguson's verified pleadings and

affidavits in this case support a finding that in executing the

offer, Maxim and Ferguson intended to enter into a binding

contract in which all material terms of the property sale were

established; the defendants' allegations do not fatally

undermine them. Here, as in McCarthy, the offer attached to the
13

complaint identified a buyer and a seller; specified a purchase

price; established a date, time, and place for closing; and

appeared to be fully executed. See McCarthy, 429 Mass. at 85.

Unlike McCarthy, while the offer here called for the later

execution of a purchase and sale, the offer's enforceability

does not appear to have been conditioned on that future

agreement. Cf. id. at 85 (offer provided that parties'

obligations to each other were "[s]ubject to" execution of

satisfactory purchase and sale that "shall" be signed by

specific date). Finally, even were there a condition

subsequent, the defendants very well may have waived that

condition by continuing to negotiate the purchase and sale past

the deadline listed in the offer to execute that document. See

id. at 88-89.

Furthermore, the evidence provided reasonable factual

support and arguable legal basis for Ferguson's argument that

Maxim accepted the offer with the apparent authority to act for

all the sellers. See Theos & Sons, Inc. v. Mack Trucks, Inc.,

431 Mass. 736, 742 (2000) ("An agency relationship is created

when there is mutual consent, express or implied, that the agent

is to act on behalf and for the benefit of the principal, and

subject to the principal's control"); Hudson v. Massachusetts

Prop. Ins. Underwriting Ass'n, 386 Mass. 450, 457 (1982)

(apparent authority exists where principal acts in way that
14

reasonably causes third person to believe that agent has

authority to act for principal). Specifically, Ferguson's

verified complaint and the relevant affidavits aver that, (1)

before the offer was executed, the five owners hired two brokers

to market and to sell the property; (2) Ferguson's broker made

an offer to the owners' brokers, which was apparently accepted

by the only owner identified to Ferguson by the brokers; (3)

thereafter, all five owners became aware of Ferguson's offer;

and (4) the other four owners nonetheless permitted Maxim to be

the only seller identified in the purchase and sale. See Licata

v. GGNSC Malden Dexter LLC, 466 Mass. 793, 801 (2014) (apparent

authority must be based on words and conduct of principal).

These allegations provided factual and legal support for

Ferguson's argument that the defendants retained brokers and

authorized them to speak on their behalf, and that those brokers

indicated Maxim was the person authorized to accept the offer.

That evidence could support a finding that Ferguson remained

unaware of any sellers other than Maxim and, if other sellers

existed, that he could reasonably have believed that Maxim was

authorized to act for all of them.18 See id. (agent's

18Although these facts were disputed, "[t]he mere
submission of opposing affidavits . . . could not, in these
circumstances, have established that the [claim] was 'devoid of
any reasonable factual support or any arguable basis in law'"
(citation omitted). Benoit, 454 Mass. at 154 n.7.
15

representations, with principal's authority to make such

representations, can establish apparent authority).

Viewing the offer as the parties' completed agreement for

the sale of the Leominster property, the purchase and sale would

have been merely "a polished memorandum of an already binding

contract" (citation omitted). McCarthy, 429 Mass. at 87. The

status of the later negotiations would not be essential to the

issue under consideration -– the enforceability of the offer –-

and so were not material at this stage.19 To the extent that the

judge decided otherwise, her determination was based on either

the use of an incorrect legal standard, or the erroneous (at

this stage of the proceedings) drawing of legal conclusions that

(1) the offer was not binding, and (2) Maxim did not have the

authority to sign the offer on behalf of the other owners. See

Licata, 466 Mass. at 801-802 (apparent authority requires

factual determination of written or spoken words or conduct of

principal, and legal determination whether third party

reasonably understood agent to be acting on principal's behalf);

Kurker v. Shoestring Props. Ltd. Partnership, 68 Mass. App. Ct.

644, 654-656 (2007) (enforceability of offer depends on legal

19"A material fact is one that is significant or essential
to the issue or matter at hand," or, put another way, is a fact
"essential to [an] element in [the] plaintiff's case"
(quotations and citations omitted). McMann v. McGowan, 71 Mass.
App. Ct. 513, 520 (2008).
16

analysis of intent of parties, language in contract, and whether

all material terms agreed upon and all conditions precedent

satisfied).

Even if the facts on which the judge focused had been

material, however, Ferguson's failure to include them in the

verified complaint did not deprive his claims of factual or

legal support,20 distinguishing the instant case from those like

McMann v. McGowan, 71 Mass. App. Ct. 513, 520 (2008), and

Galipault, 65 Mass. App. Ct. at 82-83. In McMann, supra, the

parties' contract defined the only permissible method by which

20Indeed, the facts on which the judge focused do not
directly contradict Ferguson's allegations. As to Ferguson's
awareness of sellers other than Maxim, the listing broker
averred that he informed the "selling broker" that the other
four owners would have to sign the purchase and sale. That
statement is not inconsistent with Ferguson's statement that he
did not know about the other sellers before the offer was
executed, and does not otherwise undermine either Ferguson's
claim to have believed that Maxim had the "full power and
authority to perform SELLER'S obligations under the [offer]" or
his argument that the offer was the legally significant
agreement. These are factual questions to be resolved in the
trial court.

We acknowledge that there will be instances, not present
here, where the omitted facts will directly contradict the
allegations contained in a plaintiff's complaint, and the judge
will have to resolve that conflict in some manner. Although we
need not reach that issue here, we observe that the best
practice in such a situation, in the limited circumstances of a
special motion to dismiss, may be to hold a hearing and, if
necessary, allow limited discovery on the facts in dispute. See
G. L. c. 184, § 15 (c) ("the court, on motion and for good cause
shown, may order that specified discovery be conducted"). See
also Benoit, 454 Mass. at 155-157 (Cordy, J., concurring).
17

the parties could deliver notices under their purchase and sale;

the omitted fact, which was undisputed, was the plaintiff's

failure to provide notice in the way that complied with the

terms of the contract. As the plaintiff's case turned on that

missing fact, the judge was correct in allowing the special

motion to dismiss the plaintiff's complaint. Id. The

plaintiffs in Galipault, supra at 74-76, claimed that they were

entitled to rescission of a real estate transaction based on a

right of first refusal contained in the master deed of the

condominium at issue. Their verified complaint omitted

undisputed facts about their knowledge of the sale of units

subject to that right of first refusal and of the plaintiffs'

waiver of that right, and therefore dismissal of the plaintiffs'

claim was likewise proper because the claim could not survive in

the face of those omitted facts. See id. at 83. Here, by

contrast, adding the omitted facts into the equation does not

foreclose the possibility that Ferguson's legal theory is

correct, i.e., that the offer was an enforceable contract to

which Maxim had the authority to bind the other sellers.

Finally, although the judge's dismissal of Ferguson's

complaint was not based on the Statute of Frauds, the defendants

raised the Statute of Frauds below as a bar to enforcement of

the offer against the four defendants who did not sign the

offer, and renew that argument on appeal. We conclude that
18

although the Statute of Frauds may be a viable defense, its

ultimate success depends on the resolution of disputed facts,

e.g., whether the other four defendants indicated Maxim had the

authority to sign on their behalf, see Hudson, 386 Mass. at 457,

or whether Maxim's purchase and sale with Ferguson was ratified

by the property's other owners, see Licata, 466 Mass. at 802,

rulings that, as we note above, should not be made in deciding a

special motion to dismiss. See Citadel Realty, LLC v. Endeavor

Capital N., LLC, 93 Mass. App. Ct. 39, 46 n.15 (2018) (potential

defense does not remove factual or legal basis for claim). It

was error to allow the defendants' special motion to dismiss the

complaint in this action.

Dissolution of the lis pendens. Although we conclude that

the judge erred in allowing the special motion to dismiss, it

does not necessarily follow that she erred in dissolving the lis

pendens.

As we discuss above, to obtain a lis pendens, a plaintiff

must first file a verified complaint "includ[ing] a

certification by the claimant made under the penalties of

perjury 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). The

certification requirement in § 15 (b) "is not one of mere form."

DeCroteau, 90 Mass. App. Ct. at 906. Given the significant
19

consequences of a lis pendens, "strict compliance with the

statutory prerequisites is required." Id.

Having filed a verified complaint, a plaintiff may then

move for an endorsement of the lis pendens from a "justice of

the court in which the action is pending." G. L. c. 184,

§ 15 (b). Once a lis pendens has been allowed, the statute

provides for its dissolution "[i]f the court determines that the

action does not affect the title to the real property." G. L.

c. 184, § 15 (c).

In this case, the judge dissolved the lis pendens not only

because she ruled that the complaint failed as a matter of law,

requiring dismissal, but also because Ferguson failed to include

the required certification. Reviewing for either error of law

or other abuse of discretion, McMann, 71 Mass. App. Ct. at 519,

we discern neither in the judge's dissolution of the lis pendens

based on Ferguson's failure to include the required

certification. See DeCroteau, 90 Mass. App. Ct. at 906

(affirming order denying motion for approval of lis pendens

where plaintiff's complaint failed to include certification).

As Ferguson concedes, his verified complaint did not include the

certification required by § 15 (b). Ferguson's argument that he
20

could have cured this omission by amending his complaint to

include the necessary certification does not alter our view.21

There was no error in the judge's dissolution of the lis

pendens on this basis.

21As an initial matter, Ferguson never moved to amend his
complaint; the issue was raised at the end of his memorandum in
support of his motion for reconsideration of the order allowing
the defendants' special motion to dismiss. By the time Ferguson
raised the issue, however, the complaint had been dismissed and
the dismissal had been entered. Once the complaint was
dismissed, Ferguson's ability to amend his complaint as a matter
of right terminated. See Mass. R. Civ. P. 15 (a), 365 Mass. 761
(1974). Cf. National Equity Props., Inc. v. Hanover Ins. Co.,
74 Mass. App. Ct. 917, 918 (2009). Absent the consent of the
defendants to the proposed amendment, Ferguson would have been
required to seek court permission to add the missing
certification by filing a motion to amend. Mass. R. Civ. P.
15 (b), 365 Mass. 761 (1974). Acknowledging that leave to amend
"shall be freely given when justice so requires," Lipsitt v.
Plaud, 466 Mass. 240, 254 (2013), quoting Mass. R. Civ. P.
15 (a), the burden is on the proponent of the amendment to seek
that leave, a step that Ferguson did not take. See Mass. R.
Civ. P. 7 (b), 365 Mass. 748 (1974) ("An application to the
court for an order shall be by motion which, unless made during
a hearing or trial, shall be made in writing, shall state with
particularity the grounds therefor, and shall set forth the
relief or order sought").

As importantly, even had Ferguson made the required motion
to amend, given the clear statutory requirement that the
certification be included in the verified complaint, and the
lack of any explanation for the omission, the judge would not
have been obligated to allow the amendment. See Powell v.
Stevens, 69 Mass. App. Ct. 87, 91-92 (2007) (determination
whether to grant leave to amend claims after judgment entered
lies within judge's broad discretion).
21

Conclusion. So much of the judgment as allowed the special

motion to dismiss is vacated. The remainder of the judgment is

affirmed.22

So ordered.

22Because we vacate so much of the judgment as allowed the
special motion to dismiss, the award of attorney's fees to the
defendants pursuant to G. L. c. 184, § 15 (c), is also vacated.