DEMOULAS SUPER MARKETS, INC., & another [Note 1] vs. JAMES RYAN, JR., & others. [Note 2]

GREEN, J. Is a finding on a motion under G. L. c. 231, § 6F, that a claim is not "wholly insubstantial and frivolous" preclusive of the issue whether the claim was "devoid of any reasonable factual support or arguable basis in law," incident to a special motion to dismiss a subsequent action based on the same claim,

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under G. L. c. 231, § 59H (the "anti-SLAPP" [Note 3] statute)? We conclude that the prior determination that the claim is not frivolous is preclusive for such purposes and accordingly affirm the judgment dismissing the plaintiff's complaint.

Background. The plaintiff, Demoulas Super Markets, Inc. (Demoulas), owns a shopping center located at 1900 Main Street, Tewksbury, known as Oakdale Plaza. The shopping center, which was originally built in the 1970's, had become outdated by 2002, when Demoulas purchased it. Incident to a proposed renovation of the shopping center, Demoulas sought and obtained from the Tewksbury planning board certain zoning relief (the nature of which is not specified in the record). In addition, because the proposed work posed potential impacts to wetlands areas, Demoulas sought and obtained from the Tewksbury conservation commission an order of conditions under G. L. c. 131, § 40, and the Tewksbury wetlands protection by-law.

The defendants, owners of homes in the vicinity of the shopping center (homeowners), [Note 4] appealed from both the planning board decision and the order of conditions. The appeal of the planning board decision, under G. L. c. 40A, § 17, began by complaint to the Land Court and was eventually dismissed by stipulation of the parties. The homeowners appealed from the order of conditions both administratively, to the Department of Environmental Protection (DEP) for a superseding order of conditions, and judicially, by complaint to the Superior Court in the nature of certiorari, under G. L. c. 249, § 4. The Superior Court action was thereafter dismissed for lack of subject matter jurisdiction, because the allegations of the certiorari complaint implicated no provision of the Tewksbury wetlands protection by-law that is more stringent than the corresponding provisions of the State Wetlands Protection Act. See T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124, 126 (1994). [Note 5]

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Following dismissal of the homeowners' certiorari complaint, Demoulas filed a motion for attorney's fees, under G. L. c. 231, § 6F. The judge who had previously allowed Demoulas's motion to dismiss the complaint denied the § 6F motion, stating that the complaint was not wholly insubstantial or frivolous. The judge specifically declined to enter any finding that the homeowners' complaint had been filed in bad faith. Demoulas did not appeal from the denial of its § 6F motion, as was its right under G. L. c. 231, § 6G.

Approximately six months following dismissal of the homeowners' certiorari complaint, Demoulas filed the present complaint, in three counts: abuse of process; malicious prosecution; and interference with contractual relations. The homeowners timely filed a special motion to dismiss the complaint under the anti-SLAPP statute. After a nonevidentiary hearing, a judge of the Superior Court [Note 6] allowed the homeowners' motion, and Demoulas appealed from the resulting judgment of dismissal. [Note 7]

Discussion. The anti-SLAPP statute

"was enacted by the Legislature to provide a quick remedy for those citizens targeted by frivolous lawsuits based on their government petitioning activities. See preamble to 1994 House Doc. No. 1520. See also Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161-162 (1998). The statute employs a number of mechanisms to protect the rights of those providing information to the government, including a special motion to dismiss and expedited hearing on the motion, a stay of discovery proceedings pending the motion's disposition, and the award of attorney's fees and costs to successful moving parties. See G. L. c. 231, § 59H. It applies to matters of both public

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and private concern, McLarnon v. Jokisch, [ 431 Mass. 343, 347 (2000)]; Duracraft Corp. v. Holmes Prods. Corp., supra at 164; and encompasses petitions brought before governmental agencies. See G. L. c. 231, § 59H; Office One, Inc. v. Lopez, 437 Mass. 113, 122-123 (2002) (applying anti-SLAPP statute to one defendant's communications with Federal Deposit Insurance Corporation)."

Kobrin v. Gastfriend, 443 Mass. 327, 331 (2005).

Though its scope is not limited to the land development paradigm, it is nonetheless true that "[t]he typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Office One, Inc. v. Lopez, supra at 121-122, quoting from Duracraft Corp. v. Holmes Prods. Corp., supra at 161.

The procedure governing a special motion to dismiss under the anti-SLAPP statute is well established. As a threshold matter, the moving party has the burden to show that the claims against it are " 'based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Duracraft Corp. v. Holmes Prods. Corp., supra at 167- 168. At this stage, "[t]he focus solely 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." Office One, Inc. v. Lopez, supra at 122. If the moving party makes that showing, then the burden shifts to the nonmoving party to demonstrate that "(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party." G. L. c. 231, § 59H, as amended by St. 1996, c. 450, § 245. See McLarnon v. Jokisch, supra at 349; Baker v. Parsons, 434 Mass. 543, 552 (2001); Fabre v. Walton, 436 Mass. 517, 520 (2002), S.C., 441 Mass. 9 (2004).

We review the Superior Court judge's order allowing the homeowners' special motion to dismiss for abuse of discretion or other error of law. See McLarnon v. Jokisch, supra at 348; Baker v. Parsons, supra at 550. As a threshold matter, we have no difficulty concluding that the motion judge correctly ruled

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that Demoulas's complaint was based on the homeowners' petitioning activities alone and had no other substantial basis. The counts for abuse of process and malicious prosecution were based explicitly and exclusively on the homeowners' certiorari action. Similarly, the sole means by which Demoulas alleged that the homeowners interfered with Demoulas's contractual relations was by the homeowners' prosecution of the certiorari complaint.

Demoulas argues that its complaint alleged a separate basis for its claims, in the form of its allegation that the homeowners were recruited to file the certiorari complaint by, and received financial and other assistance from, an unidentified third party. The argument is misplaced. Demoulas's complaint is directed solely against the homeowners, and the only conduct of the homeowners on which Demoulas's complaint is based is their prosecution of the certiorari complaint. As the motion judge observed, the homeowners' motives in bringing the certiorari complaint are irrelevant to a threshold determination whether the conduct complained of is protected petitioning. Office One, Inc. v. Lopez, supra at 122. Compare Cadle Co. v. Schlichtmann, 448 Mass. 242, 250 (2007) (statements designed to attract potential clients for legal services not petitioning).

Having determined that Demoulas's complaint is based on the homeowners' petitioning activity alone and has no substantial basis other than the petitioning activity, our inquiry turns to whether the homeowners' petitioning activity (the certiorari complaint) was devoid of any reasonable factual support or any arguable basis in law. In its opposition to the homeowners' special motion to dismiss in the Superior Court and in its brief on appeal, Demoulas cites Vittands v. Sudduth, 49 Mass. App. Ct. 401, 414-415 (2000), for its contention that the dismissal of the homeowners' complaint for lack of subject matter jurisdiction is alone sufficient to establish that the complaint was without reasonable factual support or arguable legal basis. Unlike the circumstances in Vittands v. Sudduth, supra, however, in which the jurisdictional defect lay in the failure timely to pursue administrative and judicial relief, the question of jurisdiction in the present case depended on the particular nature of the proposed work and the interrelationship between the Tewksbury wetlands

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protection by-law and the State Wetlands Protection Act. Whether the provisions of a local wetlands by-law impose more stringent requirements than the State Wetlands Protection Act and hence furnish grounds for judicial review in the nature of certiorari independent of administrative review by the DEP may, in some circumstances, be a fairly nuanced question. See Hobbs Brook Farm Prop. Co. Ltd. Partnership v. Conservation Commn. of Lincoln, 65 Mass. App. Ct. 142, 149-150 (2005). [Note 8] We see no reason to hold that dismissal of a certiorari action seeking review of a decision issued under a local wetlands by-law is, per se, tantamount to a determination that the action is devoid of reasonable factual support or arguable basis in law.

In the present case, neither the record nor the findings of the § 59H motion judge allow us to determine whether the absence of certiorari jurisdiction should have been apparent to the homeowners (or at least their attorney) at the time they filed their complaint. [Note 9] In his memorandum of decision dismissing the certiorari complaint, the judge observed that the portions of the Tewksbury by-law that are more stringent than those of the State Wetlands Protection Act are those that impose additional buffer zone requirements under a section of the Tewksbury by-law, but that the plaintiffs made no allegations under that section. In his supplemental findings after remand, the § 59H motion judge stated that it was only during the hearing on the homeowners'

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motion for judgment on the pleadings in the certiorari action that it became clear that they based their certiorari complaint on the claim that the order of conditions contravened the DEP's stormwater policy rather than on any provision of the Tewksbury by-law. [Note 10] However, neither the judge's findings nor the arguments of the parties describe with any particularity how the allegations of the complaint assert any ground that a reasonable person could justifiably have thought to invoke those provisions of the Tewksbury by-law that are more stringent than the requirements of the State Wetlands Protection Act. [Note 11] We need not resolve whether the homeowners' complaint presented a colorable question of jurisdiction, however, since the nonfrivolous nature of the homeowners' complaint was finally and conclusively established when Demoulas's motion for attorney's fees pursuant to G. L. c. 231, § 6F, in the certiorari action was denied. [Note 12]

"The doctrine of issue preclusion provides that when an issue has been 'actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim.' Cousineau

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v. Laramee, 388 Mass. 859, 863 n.4 (1983), quoting Restatement (Second) of Judgments § 27 (1982)." Jarosz v. Palmer, 436 Mass. 526, 530-531 (2002). See Heacock v. Heacock, 402 Mass. 21, 25 (1988).

Both the homeowners and Demoulas were parties to the prior certiorari action and to the G. L. c. 231, § 6F, proceeding that followed it. The denial of Demoulas's § 6F motion was subject to appeal (though Demoulas took no appeal); the order of denial was accordingly final and conclusive for purposes of the doctrine of issue preclusion. See Jarosz v. Palmer, supra at 534 (in order for determination to be final there must be available avenue for appellate review).

Demoulas argues that the finding that the homeowners' certiorari complaint was not frivolous should not be given preclusive effect, because its § 6F motion was collateral to the disposition of the homeowners' underlying certiorari complaint. See Ben v. Schultz, 47 Mass. App. Ct. 808, 813 (1999). The argument is misplaced. The proceeding on Demoulas's § 6F motion was collateral to the underlying certiorari complaint in the sense that it was separate and independent. [Note 13] However, within the context of the § 6F proceeding relevant to the present case, the determination that the homeowners' complaint was not frivolous was essential to the result; though an award of attorney's fees under § 6F generally requires a showing that the action is both frivolous and advanced in bad faith, in the present case the § 6F motion judge specifically declined to reach the bad faith issue and based his denial of a fee award on his conclusion that the homeowners' complaint was not frivolous. Compare Vittands v. Sudduth, 49 Mass. App. Ct. at 412 (prior fee request denied because judge was "unable to brand the attorney's conduct as 'bad faith' ").

It remains for us to consider whether the issue decided in the

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§ 6F proceeding is identical to the issue involved in the § 59H motion. That is to say, for purposes of issue preclusion, is a determination that an action is not "wholly insubstantial and frivolous" under G. L. c. 231, § 6F, equivalent to a determination that it is not "devoid of any reasonable factual support or any arguable basis in law"? Though we acknowledge that the two statutory standards are not linguistic mirrors of each other, we are persuaded that they resolve the same essential question.

"Frivolous" is defined, in part, as "of little weight or importance: having no basis in law or fact." Webster's Third New Intl. Dictionary 913 (1993). Black's Law Dictionary 692 (8th ed. 2004) similarly defines the term as "[l]acking a legal basis or legal merit; not serious; not reasonably purposeful." As applied to a claim, the plain meaning of the word "frivolous" describes an absence of legal or factual basis for the claim.

Though no Massachusetts appellate decision has had occasion to compare the standard of "wholly insubstantial and frivolous" under G. L. c. 231, § 6F, with that of "devoid of any reasonable factual support or any arguable basis in law" under the anti-SLAPP statute, our cases have tended to equate the standard under the anti-SLAPP statute with the concept of frivolousness. See, e.g., Donovan v. Gardner, 50 Mass. App. Ct. 595, 600 (2000), citing Home Sav. Bank of America, FSB v. Camillo, 45 Mass. App. Ct. 910, 912 (1998). In Duracraft Corp. v. Holmes Prods. Corp., supra at 165, the court commented that the test under Mass.R.Civ.P. 11, 365 Mass. 753 (1974), which addresses whether there is a good faith basis to believe that a claim has a basis in fact or law, see Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416 (1998), "echoes" the first prong of the test to defeat a special motion to dismiss under the anti-SLAPP statute. Continuing, the discussion in Duracraft then used the term "frivolous" in observing that the focus of the test under the anti-SLAPP statute is on the merit of the defendants' prior petitioning activity, rather than on the merit of the claim that is targeted by the anti-SLAPP special motion to dismiss. Duracraft Corp. v. Holmes Prods. Corp., supra. [Note 14]

We also note that, after enacting the anti-SLAPP statute, the

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Legislature has equated the term "frivolous" with the standard of "devoid of any reasonable factual support or any arguable basis in law" in creating a cognate special motion to dismiss under the lis pendens statute. See G. L. c. 184, § 15(c), inserted by St. 2002, c. 496, § 2 ("The special motion to dismiss shall be granted if the court finds that the action or claim is frivolous because (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" [emphasis supplied]).

According preclusive effect for § 59H purposes to a prior adjudication that a claim is not frivolous is consistent with the purposes of the anti-SLAPP statute because it relieves citizens of the burden of having to prove, in successive proceedings, the nonfrivolous nature of their protected petitioning activity. And it further reduces the likelihood that disputes over the petitioning activity itself will spawn excessive "satellite litigation." Cf. Van Christo Advertising, Inc. v. M/A-COM/LCS, supra at 422.

Demoulas's complaint was based solely on the homeowners' certiorari complaint, which constituted petitioning activity within the meaning of the anti-SLAPP statute. The denial of Demoulas's prior motion for attorney's fees, under G. L. c. 231, § 6F, on the sole ground that the certiorari complaint was not wholly insubstantial and frivolous, precludes Demoulas from contending, in opposition to the homeowners' special motion to dismiss under the anti-SLAPP statute, that the certiorari complaint was devoid of any reasonable factual support or any arguable basis in law. The judgment of the Superior Court is accordingly affirmed. [Note 15]

The anti-SLAPP statute entitles the homeowners to their attorney's fees and costs incurred on appeal. The homeowners shall, within fifteen days, submit a statement of their attorney's fees and costs in accordance with the procedure specified in

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Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Demoulas within fifteen days thereafter may submit any opposition to the amount of fees requested.

So ordered.