Opinion
Nos. 12–J–409 13–P14.
2013-11-4
COALITION TO PRESERVE the BELMONT UPLANDS AND WINN BROOK NEIGHBORHOOD & others v. COMMISSIONER OF the DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.
By the Court (MEADE, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Both parties appeal from rulings by a Superior Court judge. The plaintiffs, the Coalition to Preserve the Belmont Uplands and Winn Brook Neighborhood, Friends of Alewife Reservation, Inc., and twelve residents of the town of Belmont (collectively, the Coalition), allege that the judge erred in ruling that a postjudgment motion for fees and costs does not come within the purview of G.L. c. 231, § 59H (the “anti-SLAPP” statute). We affirm the judge's order denying the motion. The defendant AP Cambridge Partners II, LLC (Cambridge) alleges that the judge erred in denying fees and costs pursuant to G .L. c. 231, § 6F. We conclude that the judge's denial of fees and costs is not properly before us and remand this issue for determination by a single justice of this court. Background. This case has a long procedural history and we limit our recitation to those parts relevant to these appeals. The dispute involves Cambridge's plan to develop a property in Belmont, for which it sought approval from the Belmont conservation commission (commission). The commission rejected the plan, but the Department of Environmental Protection (DEP) issued a superseding order of conditions. A Superior Court judge reviewed the superseding order pursuant to G.L. c. 30A. The Coalition filed a motion for judgment on the pleadings, which the motion judge allowed, affirming the DEP's order. The Coalition then appealed to a panel of this court. While this appeal was pending, a separate panel of this court concluded that the Coalition lacked standing to seek judicial review under G.L. c. 30A and remanded the case to the Superior Court for dismissal of the Coalition's complaint.
After the judge found in Cambridge's favor, both parties filed postjudgment motions. Cambridge sought fees and costs pursuant to G .L. c. 231, § 6F, and the Coalition brought a special motion to dismiss under the anti-SLAPP statute. The judge denied both motions and both parties appealed. We consolidated those two appeals and they are now before us.
Discussion. We review the Superior Court judge's denial of the Coalition's special motion to dismiss for “abuse of discretion or error of law.” Cadle Co. v. Schlichtmann, 448 Mass. 242, 250 (2007). In addressing the Coalition's appeal from this denial, we consider whether the anti-SLAPP statute applies to postjudgment motions such as Cambridge's motion for fees and costs. We conclude that it does not. The anti-SLAPP statute permits special motions to dismiss where “a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth.” G.L. c. 231, § 59H. “[We] apply the general rule of statutory construction that a statute is to be interpreted ‘according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language.’ “ Kobrin v. Gastfried, 443 Mass. 327, 331 (2005), quoting from Triplett v. Oxford, 439 Mass. 720, 723 (2003). Where statutory language is “plain, ... the sole function of the court is to enforce it according to its terms.” Duracraft Corp. v. Holmes Prods. Corp., 42 Mass.App.Ct. 572, 575 (1997), quoting from Massachusetts Community College Council v. Labor Relations Commn., 402 Mass. 352, 354 (1988).
A plain, ordinary, and common sense reading of the anti-SLAPP statute limits its scope to special motions to dismiss in response to “civil claims, counterclaims, or cross claims.” The statute in no place provides that anti-SLAPP motions may be brought in response to postjudgment motions. Thus, Cambridge's motion for fees and costs does not fall within the statute's scope, and the Coalition cannot respond with a special motion to dismiss. We agree with the motion judge that the Coalition's anti-SLAPP motion is without merit. The motion judge did not abuse her discretion nor did she err in denying the Coalition's special motion to dismiss.
The remaining issue before us is whether a panel of this court has jurisdiction over an appeal from an order denying fees and costs under G.L. c. 231, § 6F. See Danger Records, Inc. v. Berger, 444 Mass. 1, 12–14 (2005); Bailey v. Shriberg, 31 Mass.App.Ct. 277, 282–283 (1991). We do not have jurisdiction over this appeal and must transfer it to the single justice docket, as the parties conceded at oral argument. Bailey, supra at 283.
We affirm the order denying the special motion to dismiss. We remand the appeal from the order denying the motion for fees and costs pursuant to G.L. c. 231, § 6F, to a single justice of this court.
So ordered.
Friends of Alewife Reservation, Inc., and twelve residents of the town of Belmont.