It can, if the dismissal is with prejudice and your lease has a prevailing party fee clause. In a January 2024 decision, the Appeals Court held that a former commercial tenant was the prevailing party, and was owed its attorney’s fees and costs, after the landlord’s damages suit was dismissed with prejudice on the eve of trial. A later suit the landlord dropped on its own, before any answer was filed, did not earn the tenant fees. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The tenant leased commercial property and later moved out. In 2017 the landlord sued in Superior Court, claiming the tenant left without making repairs the lease required, such as replacing water-damaged ceiling tiles, repairing worn carpets and painting. The case ran for more than four years, through discovery and trial preparation. On the day of the final pretrial conference, the landlord said it would seek a voluntary dismissal, largely because its lead lawyer was ill. A judge dismissed the case with prejudice but denied the tenant’s request for fees. Meanwhile, in 2021, the landlord filed a second suit about alterations the tenant allegedly failed to restore, then dismissed that case on its own a few months later, before the tenant answered.
What the court decided
In RocSam Properties, LLC v. Carey International, Inc., Nos. 22-P-713 & 22-P-1257 (Mass. App. Ct. Jan. 26, 2024) (Rule 23.0 decision), 103 Mass. App. Ct. 1120 (2024), the Appeals Court reversed the denial of fees in the first case and sent it back for an award of fees and costs. It affirmed the rulings in the second case.
The lease controls. The lease said that if any action was brought to enforce or interpret its terms, the prevailing party could recover reasonable attorney’s fees, to be made part of any judgment. The court read those words by their plain meaning.
First case: the tenant prevailed. A prevailing party is the one in whose favor judgment enters. Here a judgment of dismissal with prejudice entered for the tenant, so the landlord could never bring that case again. The landlord argued the dismissal was a prudent choice, not a ruling on the merits. The court disagreed. Nothing in the fee clause required a merits ruling, and a party can prevail without one. Bardon Trimount, Inc. v. Guyott, 49 Mass. App. Ct. 764 (2000). The court noted that the tenant had spent years and real money on discovery and trial preparation, and would have recovered those fees if it had won at trial. A last minute decision by the landlord not to try the case did not change that. The tenant was also awarded its appellate fees for the first case.
Second case: no fees yet. The landlord dismissed the second case on its own, without prejudice, before any answer or summary judgment motion was filed. No judgment entered for the tenant, and the landlord remained free to sue again. The court held it was premature to call the tenant the prevailing party in that case.
Sanctions against the landlord. The court also upheld a sanction against the landlord for stalling the tenant’s inspection of the property during discovery.
What this means for you
Many commercial leases include a prevailing party fee clause. Business tenants often read it as a risk. This decision shows it can also protect you. If a landlord sues you over the lease, drags the case out, and then walks away with a dismissal with prejudice, you may be able to recover what you spent defending yourself.
The type of dismissal matters. A dismissal without prejudice, filed early, leaves the landlord free to refile, and you likely cannot collect fees on that case yet. The court also pointed out that the tenant had asked for fees in its answers, and the lease clause applied on its own terms.
What to do now
- Read your lease for an attorney’s fees or prevailing party clause, and note exactly what it covers.
- If your landlord sues you, ask for attorney’s fees and costs in your answer.
- Keep detailed records of the legal fees and costs you pay as the case goes on.
- If the landlord moves to dismiss, ask whether the dismissal will be with or without prejudice, and press your fee request before judgment enters.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
