477 Harrison Ave., LLC v. JACE Boston, LLC ( 2017 )

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SJC-12150
477 HARRISON AVE., LLC vs. JACE BOSTON, LLC, & another.1
Suffolk. January 5, 2017. - May 23, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.2
"Anti-SLAPP" Statute. Constitutional Law, Right to petition
government. Practice, Civil, Motion to dismiss. Abuse of
Process. Consumer Protection Act, Unfair or deceptive act.
Civil action commenced in the Superior Court Department on
March 23, 2015.
A special motion to dismiss was heard by Dennis J. Curran,
J.
The Supreme Judicial Court granted an application for
direct appellate review.
Mark S. Furman (Emily C. Shanahan also present) for the
defendants.
Andrew E. Goloboy (Ronald W. Dunbar, Jr., also present) for
the plaintiff.
1
Arthur Leon.
2
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
LENK, J. This case involves the application of G. L.
c. 231, § 59H, the "anti-SLAPP" statute, to a dispute between
adjoining building owners. In 2011, the plaintiff purchased a
parcel of property located at 477 Harrison Avenue in Boston with
the goal of redeveloping it. The defendants own an abutting
parcel.3 Over the course of the next several years, the
defendants opposed the plaintiff's redevelopment plans in
various legal and administrative arenas. The plaintiff
eventually filed a complaint against the defendants, raising
claims of abuse of process and a violation of G. L. c. 93A,
§ 11. The defendants responded by filing a special motion to
dismiss pursuant to G. L. c. 231, § 59H. A Superior Court judge
denied the motion, the defendants appealed, and we allowed their
application for direct appellate review.
We consider first whether the defendants have met their
threshold burden under the anti-SLAPP statute of showing that
each claim is solely based on the defendants' petitioning
activity. See Duracraft Corp. v. Holmes Products Corp., 427
Mass. 156, 167 (1998) (Duracraft). We conclude that they have
done so as to the abuse of process claim, but not as to the
G. L. c. 93A claim. The judge correctly denied the special
3
Although Arthur Leon is the sole owner of JACE Boston,
LLC, we refer to him and JACE Boston, LLC, as the "defendants"
throughout the opinion for the sake of convenience. We denote
Leon separately in instances where the plaintiff alleges that
Leon personally engaged in a course of conduct.
3
motion to dismiss the latter claim. The defendants having met
their threshold burden as to the abuse of process claim,
however, the burden then shifts to the plaintiff to show that
the petitioning activity on which that claim is based lacks a
reasonable basis in law or fact and has caused it actual injury,
i.e., is not a valid exercise of the right to petition. On the
record before the motion judge, who did not reach the issue, it
is evident that only a portion of the defendants' petitioning
activity that forms the basis for the plaintiff's abuse of
process claim was shown to lack such a reasonable basis. Given
this, predating today's decision in Blanchard v. Steward Carney
Hospital, Inc., 477 Mass. , (2017) (Blanchard), the
plaintiff could proceed on only so much of its abuse of process
claim as alleges the invalid exercise of the right to petition,
with the remainder dismissed pursuant to the special motion.
Notwithstanding this, however, in light of Blanchard, which
augments the Duracraft framework, we remand the matter to the
Superior Court. The plaintiff will then have the opportunity to
show that the entirety of its abuse of process claim was not
primarily brought to chill the defendants' legitimate
petitioning activity. A successful showing in this regard will
defeat in full the special motion to dismiss.
1. Background. We summarize the relevant facts from the
pleadings and affidavits that were before the motion judge. See
4
Benoit v. Frederickson, 454 Mass. 148, 149 (2009). In December
of 2011, the plaintiff purchased a parcel of property located at
477 Harrison Avenue (477 Harrison) containing a five-story brick
building with the intent to redevelop it for residential use.
In preparation for this redevelopment, the plaintiff's building
manager, John Holland, met with Arthur Leon, the sole owner of
JACE Boston, LLC, which owned the building at 1234 Washington
Street (1234 Washington) that shared a wall with the plaintiff's
building.4 According to the plaintiff, Leon asked Holland to
delay the redevelopment of 477 Harrison so that the defendants
could redevelop 1234 Washington. Richard J. Leon attested that
his cousin, the defendant Leon, told him of "his intention to
wait [the plaintiff] out until [the plaintiff] fell into
bankruptcy on the loan and that [he] would then purchase
477 Harrison Avenue from the bank for" a fraction of what the
plaintiff paid to purchase the property.5 The plaintiff did not
accede to Leon's purportedly requested delay.
Years of conflict between the parties followed. The first
front in the ongoing struggle opened with the plaintiff's
4
The plaintiff alleges that Holland met with Leon after he
learned that Leon had engaged in a protracted effort to obstruct
another abutting developer's redevelopment plans. The record
contains an abuse of process claim filed against the defendants
by that developer. It also contains an order denying the
defendants' subsequent special motion to dismiss the developer's
claim.
5
The defendants deny that Leon made these comments.
5
request for zoning relief in early 2012. When the plaintiff
sought such relief from the zoning board of appeal of Boston
(ZBA), Leon's attorney contacted the ZBA on his behalf to oppose
it. Despite this, the ZBA unanimously voted to grant the
plaintiff's requested variances and conditional use permits.
The defendants appealed from the ZBA's decision in August of
2012. During the same time frame, the plaintiff also requested
a small project review of its redevelopment proposal from the
Boston Redevelopment Authority (BRA). Leon wrote to the BRA to
oppose this.
During the summer of 2012, the defendants brought a
declaratory judgment action regarding rights to the parties'
shared wall. The defendants' claim rested on an indenture and
agreement dated June, 1926, which provides that the owner of the
"garage building" then under construction at 1234 Washington
Street would have the "right and easement" "to tie unto and to
use for the support of said garage building the northeasterly
wall . . . of the stable" then at 477 Harrison Avenue "to a
height not exceeding two stories nor more than thirty four feet
above the line of the present curbstone at the westerly corner
of Harrison Avenue and Perry Street." In September, 2014, a
Superior Court judge ruled that this agreement referenced the
parties' respective buildings, and that it precluded the
6
plaintiff from demolishing the party wall between the two
properties below the height specified in the agreement.
With these matters pending and its redevelopment plans
thereby stalled, the plaintiff opted for what it hoped would be
a faster path forward. In September, 2013, as the parties'
summary judgment motions awaited resolution in the Superior
Court, the plaintiff abandoned its request for zoning relief,
then on appeal, to pursue instead an "as of right project."6 The
plaintiff obtained a short form building permit from the
inspectional services department (ISD) in October of 2013, from
which the defendants promptly appealed. Armed with the permit,
however, the plaintiff notified the defendants that it intended
to commence work on the parties' shared wall in late
November, 2013. The defendants immediately sought a preliminary
injunction to prevent the plaintiff's construction. Rejecting
the defendants' application for equitable relief, a Superior
Court judge instead entered an order allowing the plaintiff to
remove the undisputed portions of the wall. In the meantime,
the ISD issued the plaintiff a permit allowing it to trespass on
the defendants' property for the purpose of protecting the roof
of the defendants' building during the removal of the undisputed
portions of the wall.
6
The new proposal, which omitted the lucrative penthouses
initially planned for the project, required only a conditional
use permit.
7
And with that, the plaintiff finally began redeveloping its
property in January, 2014, two years after it initially had told
Leon about its plans. Prior to commencing construction, the
plaintiff provided the defendants with copies of the ISD short
form permit, the order from the judge permitting removal of the
undisputed portions of the wall, project plans, and an insurance
certificate. The defendants again sought injunctive relief to
prohibit the plaintiff from entering onto their property, and a
Superior Court judge again denied the relief sought. The judge
also issued an order expressly allowing the plaintiff to enter
onto the defendants' property to protect it from damage.
As the construction began, the conflict continued,7 coming
to a climax in December, 2014. At that time, Leon filed a
police report reflecting that Holland's employees were standing
on the defendants' roof and thereafter brought an application
for a criminal complaint alleging that Holland had trespassed
illegally on his property.8 The clerk magistrate at the Boston
Municipal Court found insufficient probable cause to support the
charge, and dismissed the complaint. In January, 2015, the
7
Apart from the litigation and the administrative disputes,
the defendants also filed claims with the plaintiff's insurer in
May and December, 2014, against the plaintiff's construction
company, asserting damage to the defendants' property.
8
The criminal complaint indicates that Arthur Leon told
police that "[the plaintiff's construction workers] ha[d] left
construction equipment on his roof, [including] nails,
construction debris, and [that the workers] had used chemicals
on the building."
8
plaintiff again sought to construct penthouses on its property,
and requested the requisite zoning relief from the ZBA. The
defendants provided a written opposition, but the ZBA granted
the plaintiff its requested relief. The defendants once again
appealed from this determination to the Superior Court.
Shortly thereafter, and more than three years after the
plaintiff first had begun pursuing its redevelopment plans, the
plaintiff filed a complaint against the defendants in the
Superior Court, claiming abuse of process and a violation of
G. L. c. 93A, § 11. With regard to the abuse of process claim,
the plaintiff maintained that the defendants "wrongfully used
process for ulterior purposes, including" delaying or preventing
the development of the plaintiff's property so that the
defendants could (1) "bankrupt 477 Harrison Ave., LLC and
purchase [it] from the bank at a discount price"; (2) develop
their own property at 1234 Washington Street prior to the
development of the plaintiff's property; (3) gain leverage over
the plaintiff to coerce it into removing any windows providing
views over the defendants' property at 1234 Washington Street;
and (4) extort the plaintiff into paying off the defendants.
The plaintiff also alleged that the defendants' actions
constituted "unfair or deceptive acts or practices and/or unfair
competition in violation of [G. L. c. 93A] and the Attorney
General's regulations promulgated thereunder."
9
In response to the plaintiff's complaint, the defendants
filed a special motion to dismiss pursuant to the anti-SLAPP
statute. A Superior Court judge denied the special motion,
concluding that the defendants "[could not] meet their burden
under [the anti-SLAPP statute] to establish that the plaintiff's
suit [was] solely based on their petitioning activity and [had]
no other substantial basis [emphasis in original]."
2. Discussion. The defendants maintain that they have met
their threshold burden and that the plaintiff has not then
shown -- as it must under Duracraft, 427 Mass. at 167, in order
to defeat the special motion to dismiss -- that the defendants'
petitioning activity lacked a reasonable factual or legal basis.
They argue that the judge accordingly erred in denying their
special motion to dismiss. The defendants are correct only in
part. They have met their threshold burden as to the abuse of
process claim but not as to the G. L. c. 93A claim, and the
judge correctly denied the motion as to the latter claim. As to
the abuse of process claim, the defendants are correct that the
plaintiff has not shown that the entirety of the defendants'
petitioning activities of which the plaintiff complains lack a
reasonable basis in law or fact. However, given our recent
decision in Blanchard, augmenting the Duracraft framework, the
matter must be remanded to afford the plaintiff an opportunity
10
to show that its abuse of process claim is nonetheless not a
"SLAPP" suit. See Blanchard, 477 Mass. at .
a. Special motion to dismiss. The anti-SLAPP statute
provides a "procedural remedy for early dismissal of" "lawsuits
brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances" (citation omitted). Duracraft, 427 Mass.
at 161. That remedy is the special motion to dismiss, which
allows a special movant to seek dismissal of "civil claims,
counterclaims, or cross claims" based solely on its exercise of
the right of petition. See G. L. c. 231, § 59H. To prevail on
this motion, the burden falls first on the special movant, here
the defendants, to "make a threshold showing through pleadings
and affidavits that the claims against it 'are "based on" [its]
petitioning activities alone and have no substantial basis other
than or in addition to the petitioning activities.'" See
Blanchard, 477 Mass. at , quoting Fustolo v. Hollander, 455
Mass. 861, 865 (2010).
If the special movant is able to make this showing, the
burden shifts to the nonmoving party, here the plaintiff, to
defeat the special motion to dismiss. Following today's
decision in Blanchard, the nonmoving party can now meet its
second stage burden in two ways. It may first establish "by a
preponderance of the evidence that the [special movant] lacked
11
any reasonable factual support or any arguable basis in law for
its petitioning activity," Baker v. Parsons, 434 Mass. 543, 553-
554 (2001), and that the petitioning activity caused the
nonmoving party "actual injury" -- i.e., that its petitioning
activity is illegitimate. G. L. c. 231, § 59H. If the
nonmoving party cannot make this showing, it may then attempt to
meet its burden under the augmented Duracraft framework as set
out in Blanchard by showing that its claim was not "brought
primarily to chill," see Blanchard, 477 Mass. at , quoting
Duracraft, 427 Mass. at 161, the special movant's legitimate
petitioning activities but rather "to seek damages for the
personal harm to [it] from [the] defendants' alleged . . .
[legally transgressive] acts." See Blanchard, supra at ,
quoting Sandholm v. Kuecker, 2012 IL 111443 ¶ 57.
b. Defendants' threshold burden. In order to meet its
threshold burden, the special movant must demonstrate that the
nonmoving party's claims are "solely based on" the special
movant's petitioning activities (emphasis and quotations
omitted). Duracraft, 427 Mass. at 165. A special movant's
motivation for engaging in petitioning activity does not factor
into whether it has met its threshold burden. See Office One,
Inc. v. Lopez, 437 Mass. 113, 122 (2002). Rather, the key
inquiry here is whether "the only conduct complained of is . . .
petitioning activity." Fabre v. Walton, 436 Mass. 517, 524
12
(2002). In assessing the conduct that is complained of, a judge
considers only the allegations that are relevant to the discrete
causes of action brought.
i. The abuse of process claim. An abuse of process claim
involves three elements: "[1] that process was used, [2] for an
ulterior or illegitimate purpose, [3] resulting in damage"
(quotations and citation omitted). Millennium Equity Holdings,
LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). The tort "has been
described as a 'form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, such
as the surrender of property or the payment of money.'"
Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000), quoting
Cohen v. Hurley, 20 Mass. App. Ct. 439, 442 (1985). Given that
the invocation of process necessarily constitutes petitioning
activity for the purposes of the anti-SLAPP statute, see G. L.
c. 231, § 59H (petitioning activity includes "any written or
oral statement made before or submitted to a legislative,
executive, or judicial body, or any other governmental
proceeding"), an actionable abuse of process claim will always
be, at least in part, based on a special movant's petitioning
activities.
As we noted in Fabre, however, this does not mean that an
abuse of process claim will always be solely based on a special
movant's petitioning activities. See Fabre, 436 Mass.
13at 524 n.10. Although a party's invocation of process alone may
give rise to a colorable abuse of process claim in certain
circumstances, see, e.g., Carroll v. Gillespie, 14 Mass. App.
Ct. 12, 26 (1982) (upholding abuse of process claim where
automobile repair shop owner filed criminal complaint against
customer to pressure her to pay repair bill), a cognizable claim
can also involve a subsequent misuse of such process by the
offending party that is not itself petitioning activity. See
Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. 557, 558 (1988)
("subsequent misuse of the process . . . constitutes the
misconduct for which liability is imposed" [citation omitted]).
See also Adams v. Whitman, 62 Mass. App. Ct. 850, 855-856
(2005), and cases cited (discussing these two types of abuse of
process claims). For example, a party's attempt to use an
invocation of process to extort an opposing party constitutes a
substantial nonpetitioning basis for an abuse of process claim.
See, e.g., Keystone Freight Corp. v. Bartlett Consol., Inc.,
77 Mass. App. Ct. 304, 315-316 (2010). Subsequent misuse of
process, as long it as it is not also petitioning activity, may
thus provide a nonpetitioning basis for a nonmoving party's
abuse of process claim. The question here then is whether the
plaintiff alleges that the defendants engaged in any conduct
germane to its abuse of process claim, apart from their
14
invocations of process, which can provide a "substantial basis"
for its claim.
The plaintiff avers that its abuse of process claim rests
on two grounds other than the defendants' invocations of
process: (1) the two insurance claims filed by the defendants
against the plaintiff's construction company; and (2) Leon's
alleged statements indicating an ulterior motive behind the
defendants' use of process. Neither of these, however,
constitutes substantial nonpetitioning bases for the plaintiff's
abuse of process claim.
The defendants' allegedly false insurance claims fail to
provide a substantial nonpetitioning basis for the plaintiff's
abuse of process claim because they do not bear any apparent
relation to it. Filing an insurance claim does not constitute
process in and of itself, see Jones v. Brockton Pub. Mkts.,
Inc., 369 Mass. 387, 390 (1975) (process defined as "the papers
issued by a court to bring a party or property within its
jurisdiction"), and the defendants do not suggest any connection
between the insurance claims and the defendants' use of process.
As such, the insurance claims do not support the plaintiff's
claim of abuse of process.
Although Leon's statements have obvious relevance to the
second element of the tort (use of process for an ulterior or
illegitimate purpose), the inquiry here is not as to the
15
sufficiency of the complaint under Mass. R. Civ. P. 12 (b) (6),
365 Mass. 754 (1974). The inquiry instead is whether, in
connection with the statutory special motion to dismiss, the
defendants have satisfied their threshold burden, an inquiry
that focuses on the actual conduct complained of, and not the
defendants' motivations for engaging in it. See Fabre, 436
Mass. at 523-524 (special movant's purported statements
suggesting ulterior motivation behind petitioning activity did
not provide "substantial basis other than or in addition to the
petitioning activities implicated" [emphasis in original;
citation omitted]). See also North Am. Expositions Co. Ltd.
Partnership v. Corcoran, 452 Mass. 852, 863 (2009) ("the fact
that . . . speech involves a commercial motive does not mean it
is not petitioning"); Office One, Inc., 437 Mass. at 122 (focus
in initial stage of anti-SLAPP inquiry is "on the conduct
complained of, and, if the only conduct complained of is
petitioning activity, then there can be no other 'substantial
basis' for the claim" regardless of the "motive behind [the]
petitioning activity" [emphasis and citation omitted]).
Otherwise put, the focus at the threshold burden stage is on
whether the conduct complained of consists only of the
defendants' petitioning activity; here, the only conduct
complained of is the process the defendants used. Although the
statements at issue may explain the motivation behind the
16
defendants' use of process, they are not themselves the conduct
on which the plaintiff rests its abuse of process claim and,
accordingly, cannot provide a substantial nonpetitioning basis
for that claim.9 The defendants have met their threshold burden
as to the plaintiff's abuse of process claim.10
ii. Chapter 93A claim. The plaintiff's G. L. c. 93A claim
is based on the same factual allegations as the plaintiff's
abuse of process claim. The predicate for a G. L. c. 93A claim
differs in material respects, however, from that of an abuse of
process claim, and rests here in part on acts that are not
petitioning activities. Because the plaintiff's allegation that
the defendants filed two false insurance claims against the
plaintiff's construction company provides a substantial
nonpetitioning basis for its G. L. c. 93A claim, the defendants
9
The outcome might well be different if Leon's statements
themselves constituted the underlying conduct upon which the
plaintiff's claim rested. For example, an allegation that Leon
had stated to the plaintiff that he would continue invoking
process unless the plaintiff paid him a certain amount of
money -- i.e., made a statement in an attempt to extort the
plaintiff through his use of process -- could provide a
substantial nonpetitioning basis for the plaintiff's claim.
10
The plaintiff's contention that its claims are not based
on, but are rather "in response to," the defendants' petitioning
activity is also unavailing. This argument rests on language in
a footnote in Duracraft, 427 Mass. at 168 n.20, stating that, in
the context of the anti-SLAPP statute, "based on" does not mean
"in response to." The remaining language of the note, however,
makes clear that the clause that the plaintiff cites stands only
for the proposition that counterclaims are not automatically
"based on" a special movant's petitioning activity. See id.
17
cannot show that the claim is solely based on their petitioning
activity.
While less than ideally pleaded, the plaintiffs' complaint
unmistakably alleges that the defendants' filing of false
insurance claims against the plaintiff's construction company
formed part of the unfair or deceptive practices that the
defendants engaged in to halt the plaintiff's redevelopment
projects and thereby harm the plaintiff financially.11 See Auto
Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 820
(2014) (plaintiff bringing claim under G. L. c. 93A, § 11, must
demonstrate "(1) that the defendant engaged in an unfair method
of competition or committed an unfair or deceptive act of
practice, as defined by G. L. c. 93A, § 2, or the regulations
promulgated thereunder; (2) a loss of money or property suffered
as a result; and (3) a causal connection between the loss
suffered and the defendant's unfair or deceptive method, act, or
11
The defendants maintain that the insurance claims do not
support the plaintiff's G. L. c. 93A claim because they were
submitted to the plaintiff's construction company's insurance
carrier rather than the plaintiff's insurance carrier. A
special motion to dismiss under the anti-SLAPP statute, unlike a
motion to dismiss brought under Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974), does not test the sufficiency of the
complaint. Instead a "special movant must take the adverse
complaint as it finds it," see Blanchard, 477 Mass. at , in
order to determine whether it concerns only the defendants'
petitioning activities. Thus, the only relevant inquiry is
whether the complained of conduct relevant to the plaintiff's
discrete cause of action provides a substantial nonpetitioning
basis for the plaintiff's claim.
18
practice" [footnote omitted]); Commonwealth v. Decotis, 366
Mass. 234, 241, 242 (1974) (G. L. c. 93A, § 2, does not provide
definition for "unfair practice," and "[t]he existence of unfair
acts and practices must be determined from the circumstances of
each case"). See also Linkage Corp. v. Trustees of Boston
Univ., 425 Mass. 1, 27, cert. denied, 522 U.S. 1015 (1997) ("[A]
practice is unfair if it is 'within . . . the penumbra of some
common-law, statutory, or other established concept of
unfairness; [i.e.,] is immoral, unethical, oppressive, or
unscrupulous . . .'" [citation omitted]). The allegedly false
insurance claims asserted as part of the G. L. c. 93A claim are
acts distinct from the related but separate assertedly unfair or
deceptive acts concerning the defendants' use of process.
Unlike the use of process, however, the filing of false
insurance claims does not constitute petitioning. Accordingly,
the defendants have failed to meet their threshold burden with
respect to the plaintiff's G. L. c. 93A claim, and the trial
judge's denial of the special motion to dismiss is affirmed with
respect to that count.
c. The plaintiff's second-stage burden. Because the
defendants have met their threshold burden with respect to the
plaintiff's abuse of process claim, the plaintiff may defeat the
special motion to dismiss this claim by demonstrating, "by a
preponderance of the evidence," that the defendants' petitioning
19
activity upon which its abuse of process claim is based is
illegitimate -- i.e., that it "lacked any reasonable factual
support or any arguable basis in law," Baker, 434 Mass. at 553-
555, and caused it "actual injury," G. L. c. 231, § 59H. If it
cannot make this showing, the plaintiff may now also prevail by
establishing to the judge's fair assurance that its abuse of
process claim is not a "SLAPP" suit under the augmented
Duracraft framework -- i.e., "that its primary motivating goal
in bringing its claim, viewed in its entirety, was 'not to
interfere with and burden defendants' . . . petition rights, but
to seek damages for the personal harm to [it] from [the]
defendants' alleged . . . [legally transgressive] acts.'"
Blanchard, 477 Mass. at , quoting Sandholm, 2012 IL 111443 at
¶ 57.
i. Legitimacy of the defendants' petitioning activities.
The plaintiff's abuse of process claim rests on numerous
instances where the defendants employed process and thereby
engaged in petitioning activity. To defeat the special motion
to dismiss, the plaintiff must show that each such instance
lacked a reasonable basis in law or fact. Save for Leon's
application for a criminal complaint against Holland, the
plaintiff has not carried its burden.
We note two relevant considerations in determining whether
this little-discussed second-stage burden has been met. First,
20
a plaintiff cannot meet its burden merely by presenting
affidavits contradicting the factual basis of the special
movant's petitioning activities, see Benoit, 454 Mass. at 154
n.7, or demonstrating that the petitioning activities were
unsuccessful. "The critical determination is not whether the
petitioning activity in question will be successful . . . "; it
is instead whether the petitioning activity "contains any
reasonable factual or legal merit at all." Wenger v. Aceto, 451
Mass. 1, 7 (2008). Second, the defendants' motivation for
engaging in petitioning activity does not factor into whether
their petitioning activity is illegitimate.12 See id. at 8
(nonmoving party's contention that special movant filed criminal
complaint with ulterior motive irrelevant because criminal
complaint had reasonable basis in law). Rather, the relevant
inquiry is whether the plaintiff has demonstrated that the
defendants' petitioning activity lacks an objectively reasonable
basis. See G. L. c. 231, § 59H (inquiry concerns whether
petitioning activity was "devoid of any reasonable factual
support or any arguable basis in law").
12
By contrast, the motivation behind the defendants'
petitioning activities could well be relevant to the inquiry
under the augmented Duracraft framework, discussed infra, as to
whether the plaintiff's abuse of process claim is in fact a
"SLAPP" suit.
21
Our review of the record suggests that the defendants
engaged in six separate instances of petitioning activities:13
(1) the submission of written and oral statements to the BRA and
the ZBA; (2) the filing of the zoning appeals in the Superior
Court in 2012 and 2015; (3) the filing of the declaratory
judgment action with respect to the indenture and agreement;
(4) the filing of the police report; (5) the application for a
criminal complaint against Holland; and (6) the communications
with ISD and various permits granted by ISD. Although the
plaintiff assails the motivation behind all of these activities,
it only challenges the factual and legal basis for two
invocations of process -- Leon's police report and application
for a criminal complaint against Holland for trespassing.
13
The anti-SLAPP statute defines petitioning activities
broadly to include:
"[1] any written or oral statement made before or
submitted to a legislative, executive, or judicial body, or
any other governmental proceeding; [2] any written or oral
statement made in connection with an issue under
consideration or review by a legislative, executive, or
judicial body, or any other governmental proceeding;
[3] any statement reasonably likely to encourage
consideration or review of an issue by a legislative
executive, or judicial body or any other governmental
proceeding; [4] any statement reasonably likely to enlist
public participation in an effort to effect such
consideration; or [5] any other statement falling within
constitutional protection of the right to petition
government."
G. L. c. 231, § 59H.
22
The plaintiff's argument that Leon's police report lacked a
reasonable basis in fact or law is unavailing. The police
report recounts Leon's observation that the plaintiff's workers
were standing on his roof -- which the record suggests they
were, albeit on planking supported by rubber tires -- and that
they remained there despite his warnings to the plaintiff that
they were trespassing. Given that the record supports this
account of the events, the police report does not itself lack a
reasonable basis in fact or law.
The plaintiff is on firmer ground in his argument
concerning Leon's application for a criminal complaint. The
application was purportedly filed in response to the presence of
the plaintiff's construction workers, along with various
materials and chemicals, on the roof of 1234 Washington Street.
The application for a criminal complaint was dismissed for lack
of probable cause. Although this in and of itself is not fatal
to the defendants' petitioning activity, see Benoit, 454 Mass.
at 153-154, Leon's application for a criminal complaint came
after a Superior Court judge explicitly granted the plaintiff
the affirmative right to trespass on the defendants' property to
protect it from damage. The combination of the lack of probable
cause finding and the Superior Court order supplies the
requisite preponderance of the evidence in favor of the
23
conclusion that the criminal complaint lacked any reasonable
basis in fact or law.
The plaintiff also has demonstrated that the defendants'
application for a criminal complaint caused it actual injury.
Holland stated in an affidavit that he suffered "embarrassment"
from the criminal complaint, that he had to attend a probable
cause hearing, and that he feared for the financial health of
the plaintiff if the complaint had spawned criminal charges.
This is enough to constitute "actual injury" for the purposes of
the anti-SLAPP statute. See Millennium Equity Holdings, LLC,
456 Mass. at 645 (emotional, reputational, and fiscal harms of
malicious prosecution constituted legitimate categories of harm
to plaintiff).
This then presents the novel issue as to whether all or
only some of a special movant's petitioning activities must be
shown to be illegitimate in order to defeat a special motion to
dismiss. The text of the anti-SLAPP statute is silent on the
point, and we look to the intent of the Legislature for insight.
See Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The
legislative purpose of the anti-SLAPP statute is to provide for
the expeditious dismissal of suits targeting the "valid exercise
of the constitutional right[] of . . . petition for the redress
of grievances." See Duracraft, 427 Mass. at 161, quoting 1994
House Doc. No. 1520.
24
Applying this legislative purpose to the case at hand, the
petitioning activity that has been shown to lack a reasonable
basis in law or fact is not the "valid petitioning" that the
statute protects. The situation is different as to the
remaining petitioning activity, which the plaintiff has failed
to show is illegitimate and is therefore presumptively
protected. We therefore determine that the defendants'
legitimate petitioning activity is protected by the statute.
Were we to conclude otherwise, a nonmoving party effectively
could elude the protections of the anti-SLAPP statute if it
could prove that one small portion of a special movant's
petitioning activity was illegitimate. What this means is that,
unless the plaintiff can, on remand, show that the entirety of
its abuse of process claim is not a "SLAPP" suit under the
augmented Duracraft framework, see Blanchard, 477 Mass. at -
,14 it may proceed only on so much of its abuse of process claim
as alleges illegitimate process, i.e., Leon's application for a
14
That the plaintiff only in part met its second-stage
burden of showing that the defendants' petitioning activities
were illegitimate is, however, irrelevant to its burden on
remand under the augmented Duracraft framework as set out in
Blanchard. To meet its new burden on remand, the plaintiff must
show that its primary motivating goal in filing its abuse of
process claim, in its entirety, was not to chill the defendants'
legitimate petitioning activity. See Blanchard, 477 Mass.
at . Moreover, if the plaintiff can make the requisite
showing, then the defendants' motion to dismiss is defeated in
full. Id.
25
criminal complaint. In that event, the special motion to
dismiss such portion of the abuse of process claim arising out
of the defendants' protected petitioning activities shall be
allowed and an appropriate award of attorney's fees and costs
made.15
ii. Remand. In light of our decision in Blanchard, we
remand this case to the Superior Court to allow the plaintiff to
show that its abuse of process claim is not a "SLAPP" suit under
the augmented Duracraft framework. See Blanchard, 477 Mass. at
15
The plaintiff suggests that the "preponderance of the
evidence" standard laid out in Baker, 434 Mass. at 553-555,
violates its right to a jury trial under art. 15 of the
Massachusetts Declaration of Rights ("in all suits between two
or more persons, except in cases in which it has heretofore been
otherways used and practiced, the parties have a right to a
trial by jury"). We discern no merit in the plaintiff's
argument. "The right to a jury trial does not grant to a party
the right to put to a jury any question he or she wishes."
English v. New England Med. Ctr., Inc., 405 Mass. 423, 426
(1989), cert. denied, 493 U.S. 1056 (1990). The right attaches
only to questions of fact material to the merits of a party's
claim. See id. A special motion to dismiss, however, presents
a question of law separate from the merits of the plaintiff's
claim -- the question whether the defendant's complained-of
petitioning activity falls within the protective ambit of the
anti-SLAPP statute. See Benoit, 454 Mass. at 158 n.3 (Cordy,
J., concurring) ("A finding by the judge that the plaintiff has
met his burden and the case can go forward is . . . not a
judgment on the merits of the claim, but rather an evaluation
whether the defendant's prior petitioning activity falls within
the protection of the anti-SLAPP statute"). As with the similar
doctrine of qualified immunity for government officials, the
special motion inquiry is "separate from the merits of the
underlying action . . . even though a reviewing court must
consider the [nonmoving party's] factual allegations in
resolving the . . . issue." See Mitchell v. Forsyth, 472 U.S.
511, 528-529 (1985).
26
- . "It may do so by demonstrating that [its abuse of process
claim] was not primarily brought to chill the special movant's
legitimate petitioning activities," i.e., by establishing, "such
that the motion judge may conclude with fair assurance, that its
primary motivating goal in bringing its [abuse of process
claim], viewed in its entirety, was 'not to interfere with and
burden defendants' . . . petition rights, but to seek damages
for the personal harm to [it] from [the] defendants'
alleged . . . [legally transgressive] acts.'" Id. at ,
quoting Sandholm, 2012 IL 111443 at ¶ 57.
3. Conclusion. The denial of the defendants' special
motion to dismiss is affirmed with respect to the plaintiff's
claim under G. L. c. 93A, § 11, and vacated with respect to its
abuse of process claim. Given that the plaintiff has not
demonstrated that the entirety of the defendants' petitioning
activities lacks a reasonable basis in fact or law, it may
attempt to make the showing outlined in Blanchard, 477 Mass. at
- , upon remand. The matter is remanded to the Superior Court
for further proceedings consistent with this opinion.
So ordered.