(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0711-17T3
OASIS THERAPEUTIC LIFE
Plaintiff-Appellant, APPROVED FOR PUBLICATION
December 10, 2018
PETER G. WADE and SUSAN
NAVESINK INVESTMENTS LLC;
ROBERT PHILLIPS and LOREN
Argued October 2, 2018 – Decided December 10, 2018
Before Judges Fisher, Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1287-17.
Steven H. Holinstat (Proskauer Rose, LLP) of the New
York bar, admitted pro hac vice, argued the cause for
appellant (Proskauer Rose, LLP, and Gasiorowski &
Holobinko, attorneys; Steven H. Holinstat, Alychia L.
Buchan, and Ronald S. Gasiorowski, on the brief).
Brian J. Chabarek argued the cause for respondents
(Davison, Eastman, Munoz, Lederman & Paone, PA,
attorneys; Brian J. Chabarek, of counsel and on the
Leslie A. Koch argued the cause for amicus curiae New
Jersey Defense Association (Methfessel & Werbel,
attorneys; Leslie A. Koch, on the brief).
The opinion of the court was delivered by
Plaintiff's complaint alleged that defendants' interference with plaintiff's
efforts to purchase property for use as a group home for autistic individuals
violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-49. We conclude, as the LAD makes clear, that it is, in fact, unlawful to
discriminate against a buyer because of the disability of a person intending to
live on the premises, even if the buyer does not fit within the protected class,
N.J.S.A. 10:5-4.1, and that it is, with a discriminatory intent, unlawful to
interfere with another's transaction, N.J.S.A. 10:5-12(n). Plaintiff asserted
actionable LAD claims and the motion judge erred in dismissing the complaint
for failure to state a claim on which relief might be granted. R. 4:6-2(e). And
we reject the judge's determination that defendants' alleged interference with
plaintiff's attempt to secure a monetary grant from a nonprofit foundation to
assist with its purchase was protected by the Noerr-Pennington doctrine1
because it was not shown the nonprofit foundation was a governmental or quasi-
Joan Mai Cleary, a nurse and mother of an autistic child, possessed an
interest in developing educational programs for the autistic. 2 In considering the
difficult transition of autistic children from childhood into young adulthood, she
and her husband, John Cleary, formed Ongoing Autistic Success in Society
(Oasis), a nonprofit charitable organization, to create transitional residential
adult independent learning (TRAIL) centers; these centers were intended as a
transition program similar to the college experience and, for students who
The Noerr-Pennington doctrine – named for E. R.R. President's Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127, 136-38 (1961), and United Mine
Workers of Am. v. Pennington, 381 U.S. 657, 669-70 (1965) – was crafted by
the Supreme Court to immunize from suit the conduct of those who petition the
government for redress or seek to influence governmental action.
The motion judge was required to assume the truth of the complaint's
allegations and provide plaintiff with the benefit of all reasonable infer ences.
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). He
was required, as are we, to search the complaint "in depth and with liberality to
determine whether a cause of action can be gleaned even from an obscure
statement." Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div.
2002). In adhering to this standard, the facts we discuss in this opinion are taken
from the complaint and assumed to be true.
successfully complete that program, to establish permanent farm centers where
attendees could live and work into the future. The Clearys believed the peaceful
and natural setting of a farm would provide a rewarding and therapeutic working
and living environment for challenged individuals.
In establishing its first TRAIL center, Oasis purchased a twenty-six-acre
Monmouth County estate. Given the program's success, Oasis sought a second
site as a permanent place to live and work for those who "graduated" after four
or five years at the first TRAIL center.
In February 2015, Oasis offered to buy from its owner a large residential
property on Navesink River Road in Middletown for the purpose of establishing
a new Oasis farm. Oasis offered $2,200,000 contingent on a $600,000 grant
from the Monmouth Conservation Foundation (MCF).3 A few months later,
MCF's acquisitions committee approved a resolution for the $600,000 grant
subject to full board approval. Approval of the full MCF board, however, was
delayed when one board member, who apparently lived near the property,
expressed a concern about the Sandy Hook Elementary School shooting and a
possible link between autism and that tragic event; as Oasis alleged in its
Oasis partnered with MCF and others when it purchased the first TRAIL
complaint, this assertion was based on the misguided leap that "autistic
individuals are inherently deranged murderers." This circumstance, according
to Oasis, marked the beginning of the harassing and discriminatory conduct that
Undeterred by this "unfounded fear," Oasis and the property owner
contracted in April 2015; their agreement was contingent on the anticipated
MCF grant. Before the next scheduled MCF vote, however, defendants Peter
and Susan Wade (defendants) and others in the neighborhood began a do or-to-
door campaign, compiling signatures on a petition objecting to the anticipated
MCF grant. Oasis claims this campaign provoked the MCF into denying the
Defendants and other neighbors also cobbled together a sham offer to
induce the property owner to back out of his commitment to sell to Oasis. Upon
learning this, Oasis offered to drop the MCF contingency in its contract, but
Oasis claims the neighborhood pressure was enough to cause the owner to
terminate his relationship with Oasis. But defendants dragged out the
contractual process and, on the eve of closing – having heard Oasis decided to
look for property elsewhere – defendants and their comrades walked away from
the deal. In May or June 2015, the property owner again approached Oasis, and
the deal – this time without the MCF contingency – was resurrected.
Anonymous individuals – who did not identify themselves – wrote to the
property owner, reminding him that "[w]e have all been good neighbors" and
"up until now you have been a good neighbor." "Why," they rhetorically asked,
"would you do this to us?" And: "[h]ow can you live with yourself?" They
claimed that what the property owner was "doing to us" was "hurtful" and the
cause of "much anxiety."
These unidentified neighbors asserted that they were "still prepared to
purchase the property" and "quickly." They urged the property owner to
"PLEASE. PLEASE. PLEASE give us this opportunity." Within a few days of
this anonymous letter, defendant Peter G. Wade (Wade) telephoned Mai Cleary,
expressing regret about "the grievous error of withdrawing [his] offer" to
purchase the property. He offered to make a $250,000 contribution to Oasis in
exchange for an assignment of Oasis's contract rights; Oasis rejected this
"donation/bribe." Oasis also alleged that Wade offered to pay the seller
$250,000 to break his contract with Oasis. That offer was also rebuffed, and
Oasis's transaction closed on July 2, 2015.
The closing, according to the complaint, did not deter defendants'
discriminatory conduct. In fact, days before the closing, Wade asked that Oasis
discontinue its use of a shared driveway; Oasis declined but, "as a courtesy,"
said it would limit its use. Wade responded that he believed the prior owner had
"already abandoned the easement" and that he would "proceed legally to have
it [so] declared."
According to the complaint, defendants' actions devolved from churlish to
destructive. In November 2015, Oasis residents woke to find and be alarmed by
what is described in the complaint as "enormous, garish and frightening graffiti"
that included depictions of snakes and fire covering "approximately 600 -700
square feet on and at the [Oasis] driveway." Wade admitted "we did that."
The following month, defendants allowed to trespass onto Oasis's property
their "very aggressive goat," which "head butt[ed]" Mai Cleary. They also
allowed a horse to graze on Oasis's property, leaving piles of manure. Indeed,
the complaint alleged defendants dumped "literally hundreds of pounds" of
horse manure on Oasis's property.
That same month, defendants constructed a fence across the easement.
When Oasis objected, defendants agreed to but never did remove the fence.
Oasis also alleged that in April 2016, a neighborhood attorney attempted to
convince the tax assessor that Oasis should be paying property taxes, falsely
claiming autistic children did not live on the property.
In May 2016, the Wades commenced a quiet title action in the Chancery
Division. Oasis answered the complaint and filed a counterclaim against the
Wades. Oasis also filed a third-party complaint against others, in which Oasis
alleges, among other things, interference with their easement and propert y rights
and violations of the LAD. 4
The Chancery judge severed Oasis's LAD claims and directed their
refiling in the Law Division. 5 Oasis complied and filed in the Law Division a
complaint against the Wades, Navesink Investment Co., Robert Phillips, and
Loren Phillips. Oasis alleged the facts summarized in the first section of this
opinion and demanded injunctive relief, as well as compensatory and punitive
Oasis alleged that, in February 2017, Wade or someone acting on his behalf
dug up a large cement survey marker that served to delineate a boundary
between the Oasis and Wade properties.
The appellate record offers no insight into the status of the chancery portion
of the parties' disputes. The parties agree its status or disposition has no bearing
on the issues before us.
Defendants quickly moved pursuant to Rule 4:6-2(e) to dismiss for failure
to state a claim upon which relief might be granted, and Oasis cross-moved
pursuant to Rule 4:9-1 for leave to file an amended complaint that would add
claims of tortious interference with both contractual relations and prospective
economic advantages (the tortious interference claims) and trespass. The
amended complaint also sought to add three additional defendants: MCF board
member Dan Crabbe, his wife Nancy Crabbe, who had expressed fear of another
Sandy Hook massacre if Oasis joined the neighborhood, and Richard McOmber,
Esq., who urged the tax assessor to pursue Oasis on a false claim that no autistic
individuals were living on the property.
The motion judge granted defendants' motion. He also permitted the filing
of an amended complaint but only as to the new trespass claim; the tortious
interference claims were precluded. So limited, Oasis chose not to file the
amended complaint and filed this appeal instead.
In appealing the dismissal order, Oasis contends the motion judge erred:
(a) by finding Oasis lacked standing to assert LAD claims; (b) by determining
Oasis failed to plead a cognizable LAD claim; (c) by applying the Noerr-
Pennington doctrine and First Amendment in immunizing defendants' conduct;
and (d) by barring Oasis's proposed tortious interference claims. We largely
agree with Oasis's arguments and reverse.
The question of standing need not long detain us.
We initially consider and quickly reject any notion that because Oasis is
a corporation or business entity – and not an individual – it is not a "person"
within the meaning of the LAD. The motion judge didn't draw such a
conclusion, but the point is discussed in the parties' submissions, so we briefly
observe that for LAD purposes, a "person" may be more than just an individual.
See N.J.S.A. 10:5-5(a) (absent "a different meaning clearly appear[ing] from the
context," a "'person' includes one or more individuals, partnerships,
associations, organizations, labor organizations, corporations, legal
representatives, trustees, trustees in bankruptcy, receivers, and fiduciaries").
We also consider the more nuanced question of Oasis's entitlement to
assert claims of discrimination on its own behalf or on behalf of those who
benefit from its charitable works. We conclude there is no doubt that Oasis has
standing to assert these claims in its own right. N.J.S.A. 10:5-13 declares that
a claim may be pursued by "[a]ny person claiming to be aggrieved by an
unlawful employment practice or an unlawful discrimination . . . ." Accepting
as we must the allegations of the complaint, Oasis claims it has been damaged
directly by – among other things – defendants' alleged attempts to interfere with
Oasis's efforts to purchase the property, through the vandalizing of its property,
in the efforts to interfere with its easement rights, and its loss of the MCF grant.
This claim of economic damage allegedly resulting from defendants' alleged
discriminatory conduct sufficiently meets the standing required by the LAD.
Beyond this alleged direct economic damage, we agree with the
sentiments expressed in Kessler Inst. for Rehab. v. Essex Fells, 876 F. Supp. 641, 652 (D.N.J. 1995), that a party in Oasis's position may also incur "stigmatic
and associational" damage in this way; viewing Oasis's allegations broadly, as
we must, see n. 2, defendants' conduct may be viewed as interfering with Oasis's
relationship to those who benefit from its existence and its good works. N.J.S.A.
10:5-13 authorizes the pursuit of a claim generated by the unlawful
discrimination of others even when that discrimination was more directly geared
toward or engaged against those with whom the plaintiff has a relationship.
Thus, Oasis is entitled to seek relief based on the conduct directed toward it
because of the benefits it provides to others in a protected class. That too is
sufficient to confer standing on Oasis under the LAD.
We are also satisfied that Oasis has presented a viable LAD claim. 6
The LAD's "overarching goal . . . is nothing less than the eradication 'of
the cancer of discrimination.'" L.W. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 399 (2007) (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)).
"Freedom" from this cancer "is one of the fundamental principles of our
society," Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600 (1993) – a principle
of such importance that we have been directed to liberally construe the LAD's
provisions, L.W., 189 N.J. at 400; accord N.J.S.A. 10:5-3 (declaring "this act
shall be liberally construed in combination with other protections available
under the laws of this State"), in pursuit of the LAD's goals.
With this in mind, we readily conclude that Oasis pleaded a maintainable
LAD cause of action against these defendants as well as those Oasis sought to
Oasis has argued that its claims fall within numerous LAD provisions.
Because the action was dismissed for failure to state a claim, it is enough that
we find at least one maintainable LAD cause of action in order to reverse and
remand this action. So, we need not determine whether all Oasis's pleaded claims
are viable. We leave the question of whether Oasis has pleaded or maintained
any other LAD claims to be developed through discovery and other proceedings
in the trial court.
join as defendants. N.J.S.A. 10:5-4.1 makes it unlawful "to discriminate against
any buyer or renter because of the disability of a person residing in or intending
to reside in a dwelling after it is sold, rented or made available or because of any
person associated with the buyer or renter." That provision clearly does not
mean that a seller or landlord must possess the discriminatory intent or that a
buyer or renter is the person directly discriminated against. This provision's
plain meaning supports what is alleged to have occurred here – that defendants
targeted and tormented Oasis because Oasis was providing a residence for
autistic individuals. N.J.S.A. 10:5-4.1 renders that conduct unlawful, and the
judge erred in dismissing the action for this reason alone.
N.J.S.A. 10:5-12(l) also makes it unlawful for a person to refuse to
transact with another because of a protected characteristic. 7 Applied here, this
provision would render, for example, the former property owner from fulfilling
its contractual obligation to Oasis for a discriminatory reason. No one argues
or suggests the prior owner could or should be so accused. But, in arguing such
This section prohibits "any person" from "refus[ing] to buy from, sell to, lease
from or to, license, contract with, or trade with, provide goods, services or
information to, or otherwise do business with any other person on the basis of .
. . disability . . . of such other person or such other person's spouse, partners,
members, stockholders, directors, officers, managers, superintendents, agents,
employees, business associates, suppliers, or customers."
a limitation in these provisions, defendants fail to recognize that the LAD also
renders unlawful the conduct of those who, with discriminatory animus, would
attempt to induce such a result. That is, while the prior owner here did not
engage in discriminatory conduct, defendants are alleged to have acted or
conspired to incite the owner to breach his contract with Oasis. Such conduct is
forbidden by N.J.S.A. 10:5-12(n), which makes it unlawful "[f]or any person to
aid, abet, incite, compel, coerce, or induce the doing of any act forbidden by
[N.J.S.A. 10:5-12(l)] . . . or to attempt, or to conspire to do so." So, while the
prior owner's actions were not spurred on by any discriminatory actions on his
part as prohibited by N.J.S.A. 10:5-12(l), defendants' actions were alleged to
have induced or attempted to induce a discriminatory result by interfering with
the prior owner's dealings with Oasis. The LAD prohibits this 8 and provides a
cause of action to redress defendants' alleged conduct. 9
To provide a simpler but apropos example, if a Caucasian (A) agreed to sell
or negotiated to sell his property to an African-American (B) but A's Caucasian
neighbors (C, D, and E) acted with a discriminatory intent to cause or attempt
to cause A to breach his contract with or decline to sell to B, there is no doubt
B would have an actionable claim against C, D and E under these provisions.
This is essentially what is alleged to have occurred here; Oasis is just in a
different protected class.
Defendants argue that N.J.S.A. 10:5-12(n) does not apply in this setting
because the specific types of prohibited conduct identified in its subsections (1)
Defendants argue, and the motion judge held, that defendants' efforts to
thwart Oasis's attempts to secure a $600,000 MCF grant were immunized by the
The Noerr-Pennington doctrine, see n. 1, recognizes "the fundamental
values that undergird a citizen's right to communicate on issues of public
and (2) suggest a commercial setting rather than a dispute among neighbors. We
disagree. In describing the conduct prohibited by the aiding and abetting
provisions of N.J.S.A. 10:5-12(n), the Legislature clearly stated that the conduct
prohibited "shall include, but not be limited to" those two examples. The first
prohibits "[b]uying from, selling to, leasing from or to, licensing, contracting
with, trading with, providing goods, services, or information to, or otherwise
doing business with any person because that person does, or agrees or attempts
to do, any such act or any act prohibited by this subsection." N.J.S.A. 10:5-
12(n)(1). And the second bars "[b]oycotting, commercially blacklisting or
refusing to buy from, sell to, lease from or to, license, contract with, provide
goods, services or information to, or otherwise do business with any person
because that person has not done or refuses to do any such act or an y act
prohibited by this subsection . . . ." N.J.S.A. 10:5-12(n)(2). In so crafting
N.J.S.A. 10:5-12(n), the Legislature may have thought that the general language
in subsection (n) might not be understood to encompass certain specific
commercial conduct and intended to make clear its reach through the inclusion
of subsections (1) and (2). But its included-but-not-limited-to language
bespeaks an intent to provide other prohibitions, not just commercial
prohibitions, such as the historically common discriminatory conduct mentioned
in n. 7.
It is important to recognize that the Noerr-Pennington doctrine, if applicable,
would bar Oasis's claims only insofar as those claims are based on the loss of
the grant, not otherwise.
import," Fraser v. Bovino, 317 N.J. Super. 23, 37 (App. Div. 1998), by
immunizing such actors from suit. Courts recognize an exception to immunity
when the conduct "is a mere sham to cover," for example, "'an attempt to
interfere directly with the business relationships of a competitor.'" Prof'l Real
Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 51 (1993)
(quoting Noerr, 365 U.S. at 144). In considering whether conduct is a "mere
sham," the conduct must be examined objectively and "without consideration of
the actor's underlying motivation, no matter how improper it may be ." Fraser,
317 N.J. Super. at 38. That is, the legality of an objectively reasonable petition
directed toward obtaining governmental action is "not at all affected" if the
actor's motivation was anticompetitive. In short, that "a private party's . . .
motives are selfish is irrelevant." City of Columbia v. Omni Outdoor Advert.,
Inc., 499 U.S. 365, 380 (1991). The presumption of immunity, however, is lost
when the suit or an application to a governmental body is "objectively baseless
in the sense that no reasonable litigant could realistically expect success on the
merits" and when the intent is to further wrongful conduct "through the 'use [of]
the governmental process – as opposed to the outcome of that process.'" Prof'l
Real Estate Inv'rs, 508 U.S. at 60-61. See Allied Tube & Conduit Corp. v. Indian
Head, Inc., 486 U.S. 492, 500 n.4 (1988) (holding that "private action that is not
genuinely aimed at procuring favorable government action is a mere sham that
cannot be deemed a valid effort to influence government action"). Indeed, it has
been recognized – but we need not presently decide – that so long as the private
action is objectively reasonable it doesn't matter if the actor had racial or
discriminatory motives. See Barnes Found. v. Twp. of Lower Merion, 927 F. Supp. 874, 876-77 (E.D.Pa. 1996).
The error in the application of the Noerr-Pennington doctrine here is that
it has not been shown that defendants – in seeking to interfere with or kill the
$600,000 MCF grant – were petitioning the government. Instead, defendants
acknowledge that MCF "is a nonprofit organization rather than a governmental
entity" (emphasis added). At defendants' urging, the motion judge concluded
that MCF must be a quasi-governmental entity because it was exercising
abilities "similar to that of a governmental entity regulating land use." But there
is no evidence to support this. The record reveals only that MCF is a nonprofit
charitable entity organized under 26 U.S.C. § 501(c)(3); what governmental
body is organized under that Act of Congress? And any claim that MCF was
acting as a quasi-governmental agency could not be resolved on this record or
at this stage,11 when the judge was required to provide Oasis with all reasonable
We similarly reject defendants' argument that the First Amendment
insulates them from Oasis's claims. Defendants were not free to violate the LAD
simply because the means used to discriminate included speech. Presbytery of
the Orthodox Presbyterian Church v. Florio, 902 F. Supp. 492, 521 (D.N.J.
1995). We agree with Oasis that "[w]hile [d]efendants are free to get up on their
proverbial soapbox and make public their negative views about people afflicted
According to its website, which is referred to in the appellate record, MCF is
a 501(c)(3) nonprofit entity that was organized for the purpose of "preserving
land and protecting the natural habitat" acting as a "facilitator and/or [sic]
partner among public and private entities" and aiming to "preserve land by
determining how a property will be best preserved and utilized so the public -at-
large benefits." Monmouth Conservation Foundation,
www.monmouthconservation.org/menu/ (last visited Dec. 3, 2018). MCF
provides services to help "residents, landowners, and municipalities preserve the
lands that are important to their communities," such as funding, easement
monitoring, and negotiating land transaction for municipalities. Monmouth
Conservation Foundation, www.monmouthconservation.org/our-services/ (last
visited Dec. 3, 2018). Defendants have not shown how such activities ought to
allow a court to view MCF as a quasi-governmental entity.
The parties have not briefed and we, consequently, do not consider whether
prospective defendant McOmber's alleged conduct in seeking to invoke the
taxing authority of a governmental body fits within the Noerr-Pennington
doctrine's parameters. Indeed, Oasis has not yet been given the opportunity of
pursuing any claims against McOmber. Our consideration of that issue would,
therefore, be premature.
with autism, such expression loses its First Amendment protection when it is
used as [a] vehicle for discriminatory conduct that violates the LAD and the
State's interest in eliminating discrimination."
Lastly, we consider the judge's denial of Oasis's motion to amend its
complaint to include tortious interference claims. The facts we have already
discussed sufficiently support these claims, and it requires no further burdening
of this record or extensive citation to cases to demonstrate that. In fact, we view
defendants' response to this part of the appeal as chiefly relying on the Noerr-
Pennington and First Amendment arguments we have already rejected. It
suffices to observe that Oasis alleged that defendants wrongfully interfered in
its contract with the former owner or with the economic opportunity its
negotiations presented, and sought to undermine those rights by successfully
interdicting the $600,000 grant. The elements of both tortious interference
claims were contained in the proposed amended complaint that the judge would
not permit be filed. See generally LaMorte Burns & Co. v. Walters, 167 N.J.
285, 305-06 (2001). Absent some other reason for withholding leave to file an
amended complaint unsuggested by the record, the judge was obligated to grant
the relief Oasis sought.
In a convoluted argument, defendants contend the judge – despite his clear
statements on the record and the content of the memorializing order – actually
permitted Oasis to file an amended complaint that would include its tortious
interference claims. We find this argument lacking in sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E). There is no doubt
that the judge denied Oasis the opportunity to file an amended complaint
including these tortious interference claims 13 and erred in doing so.
Defendants are correct, however, that the judge permitted Oasis to file an
amended complaint that would include a trespass claim. Oasis chose not to do
so and instead made the conscious decision to allow the consequence of its
inaction to evolve into a final and appealable order. Oasis did not have the right
to momentarily forego its new trespass claim in order to obtain appellate review
of the other issues while retaining for itself the right, upon succeeding on appeal,
to reinvigorate the abandoned claim. We agree with defendants that the trespass
claim Oasis would have presented in the amended complaint was waived
because, in this indirect way, Oasis clearly and unequivocally relinquished its
The judge actually provided no explanation for barring the tortious
interference claims. We assume the judge mistakenly believed those claims were
foreclosed as a result of the other rulings we have found to be erroneous. But
he certainly did not mean to allow them to be included in the amended complaint
right to pursue it. See Scibek v. Longette, 339 N.J. Super. 72, 82 (App. Div.
2001). But, to the extent the original complaint contained the fundament of such
an action, it may continue to be pursued because the waiver concept we apply
can have no application to those claims asserted in the original complaint. 14
To summarize, we reverse the order that dismissed the complaint and that
denied Oasis leave to file an amended complaint that would include its tortious
interference claims. Under the circumstances, the trespass claim that Oasis
would have added by way of the proposed amended complaint but consciously
chose not to file is barred by the doctrine of waiver.
Reversed and remanded for entry of an order permitting the filing of an
amended complaint in conformity with this opinion. We do not retain
We do not think that Oasis was faced with a Hobson's choice such that might
have caused us to view this waiver issue differently. Oasis was merely in the
position of either taking the action it took or filing the trespass amended
complaint and moving for leave to appeal. Considering how the motion judge
deeply eviscerated Oasis's complaint, it is highly likely we would have granted
leave to appeal. If, however, Oasis took that action, and we somehow declined
to grant such an application, Oasis could then have dismissed its trespass claim
in order to achieve finality and then the waiver issue might have been put on a