2016 Mass. App. Div. 91

October 16, 2015 - July 27, 2016

Appellate Division Southern District

Court Below: District Court, New Bedford Division

Present: Welch, Finnerty & Finigan, JJ.

In the New Bedford Division, Justices: Macy, J.; Kirkman, J. [Note 1]

Nicholas A. Gomes for the plaintiff.

Paul M. Operach for the defendant.

WELCH, J. The defendant, Platinum Group Realty, Inc. (“Platinum”), commenced this appeal in accordance with Dist./Mun. Cts. R. A. D. A. 8C, citing three errors of law. Two of the alleged errors are not proper matters for appeal, [Note 2] leaving us with the remaining grievance regarding the trial court’s allowance of a special motion to dismiss pursuant to G.L. c. 231, § 59H. [Note 3]

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The dispute in this case concerned an alleged oral agreement for the sharing of legal fees to reach a deposit due from a failed real estate closing. Plaintiff Thomas Sheppard (“Sheppard”) and his wife Mary-Anne Sheppard (collectively, “the Sheppards”) agreed to sell their home in Dartmouth, MA to Theodore, Gina, and Harry Booth (collectively, “the Booths”). The Booths deposited $5,000.00 in the escrow account of Platinum, the realtor, subject to the terms and conditions of a signed purchase and sale agreement. For reasons not germane to this decision, the sale did not occur.

After the sale failed to materialize, the Sheppards retained an attorney to retrieve the deposit held by Platinum. Sheppard entered into an oral agreement (wherein the dispute lies) with Platinum, in the person of Judith Lima (“Lima”), to share the cost of retaining the attorney. An initial amount of $500.00 was deposited with the attorney, and the parties agreed to split the fee ($250.00 apiece). After unsuccessful attempts at resolution, the attorney contacted Sheppard indicating that he would have to file suit in Bristol Superior Court for specific performance. The attorney told Sheppard that the initial deposit of $500.00 would not cover the cost of litigation. As the moneys would end up being divided between the Sheppards and Platinum, according to Sheppard, he reached out to Platinum for further contribution towards the legal fees. It is Sheppard’s contention that Lima agreed to pay half of the additional fees for filing suit; Lima contends there was no such agreement and the only amount she agreed to pay was half of the original $500.00 deposit.

The Superior Court litigation settled, resulting in one half of the funds, $2,500.00, released to the Sheppards and the remaining half retained by Platinum. The bill from the attorney amounted to $2,500.00, and Sheppard sought half of that amount from Platinum as its pro rata share of the cost of litigation. It was Sheppard’s position that Lima, on behalf of Platinum, had agreed to pay one half of $2,500.00. Platinum paid $250.00 to the attorney, representing what Platinum states was the agreed-upon share of the attorney’s fees. Thereafter, Sheppard filed a complaint for breach of an oral agreement.

In answering Sheppard’s complaint, Platinum counterclaimed alleging abuse of process (the process being Sheppard’s filing of the complaint alleging breach of contract). In response to the counterclaim, Sheppard filed a special motion to dismiss alleging that the counterclaim for abuse of process was in violation of the statute prohibiting the filing of litigation for the sole reason of harassment and intimidation, the so-called “anti-SLAPP” [Note 4] statute, G.L. c. 231 § 59H. After hearing, the court allowed the

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special motion to dismiss, dismissing Platinum’s counterclaim. The sole issue for our attention is whether the court abused its discretion or erred in dismissing the defendant’s counterclaim for abuse of process pursuant to G.L. c. 231, § 59H.

In its counterclaim, Platinum avers that the filing of the complaint by Sheppard for breach of an oral contract was an abuse of process. The elements of abuse of process are (1) process was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage. Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000). Instead of a bright-line rule, the determination of whether the petitioning activity alone is sufficient to support an abuse of process claim is made on a case by case basis. Adams v. Whitman, 62 Mass. App. Ct. 850, 855 (2005) (“[I]nitiating process alone can at times be so coercive and promoting of ulterior advantage that it supports an abuse of process claim.”). The gravamen of the complaint was a straightforward breach of an oral agreement. As the process alleged to have been abused was the initiating of litigation, Sheppard brought a special motion to dismiss the counterclaim alleging that the counterclaim had no merit and was filed only to harass and intimidate. G.L. c. 231, § 59H.

General Laws c. 231, § 59H was drafted in order to address concerns over lawsuits that were being filed for the sole reason of harassing or intimidating individuals who were exercising their rights to petition. By way of example, lawsuits were being filed against people who were exercising their civic rights to engage in activities, such as filing appeals against agency decisions, engaging in initiative and referendum activities, boycotting and demonstrating, and other civically minded petitions. These spurious lawsuits would be filed, and as a result, the citizens exercising their rights would be forced to defend themselves in court resulting in their incurring substantial attorney’s fees, oftentimes having to abandon their petitions. [Note 5] A SLAPP suit generally has no merit; the plaintiff’s objective is not to win, but to “‘use litigation to intimidate opponents’ exercise of rights of petitioning and speech,’ and ‘to deter common citizens from exercising their political or legal rights or to punish them for doing so.’ Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161-162 (1998), quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816-817 (1994).” Wenger v. Aceto, 451 Mass. 1, 4-5 (2008).

Although many States require the petitioning activity to involve a matter of public concern as a prerequisite to invoking the protection of their own anti-SLAPP statutes, the “public concern” element is not part of G.L. c. 231, § 59H. Duracraft Corp., supra at 163-164 & n.12. See also Baker v. Parsons, 434 Mass. 543, 548-549 (2001). A civil matter for breach of contract falls within the rubric of the statute as a petition. See Duracraft Corp., supra. General Laws c. 231, § 59H sets forth a two-step process to challenge the improper filing. The process initiates with a “special motion” filed by the challenging party alleging that the sole reason for the claim is based entirely on a petitioning activity. Once this condition precedent has been met, the burden shifts to the opposing party to show that both the moving party’s exercise of its right to petition was devoid of any reasonable factual support or basis in law and that the actions of the moving party caused actual damage. See Cadle Co. v. Schlichtmann, 448 Mass. 242,

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249 (2007); Fabre v. Walton, 436 Mass. 517, 520 (2002); Baker, supra at 544, 551-552; McLarnon v. Jokisch, 431 Mass. 343, 348-349 (2000); Duracraft Corp., supra at 167-168.

We review the judge’s decision to grant the special motion to dismiss for abuse of discretion or error of law. See Town of Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 595 (2014); Marabello v. Boston Bark Corp., 463 Mass. 394, 397 (2012). A judge’s decision constitutes an abuse of discretion where we conclude that the judge made “‘a clear error of judgment in weighing’ the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives. See Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168-169 (2d Cir. 2001); Adoption of Mariano, 77 Mass. App. Ct. 656, 660 (2010).” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In reviewing the decision, the motion judge adopted the reasons as set forth in Sheppard’s memorandum in support of his motion to dismiss. An examination of the factual underpinnings of the claim for breach of contract, as set forth in the twenty-four paragraphs of the complaint, shows a good faith basis for the filing of a civil action for breach of an oral agreement.

Upon the showing by the moving party, Sheppard, that the counterclaim was based exclusively on his petitioning activity, the burden shifts to the nonmoving party, Platinum, to show by a preponderance of the evidence that the petition, the complaint for breach of contract, was devoid of factual support or arguable basis in the law. Baker, supra at 553-554, 555 n.20 (must show that no reasonable person could conclude that there was a basis in law for petitioning activity). Platinum must also show actual injury caused by the false petition. Benoit v. Frederickson, 454 Mass. 148, 152-153 (2009). For the same reasons that Sheppard met his burden in the threshold inquiry, so Platinum fails to show the petition devoid of factual support. Furthermore, Platinum fails to demonstrate any injuries. The decision of the motion judge is affirmed. [Note 6]


[Note 1] The Honorable Kathryn E. Hand and the Honorable J. Thomas Kirkman recused themselves from this appeal, and did not participate in any aspect of its hearing, review, and decision.

[Note 2] Not the model of clarity, Platinum’s brief sets forth three grounds of appeal. The first ground, entitled “Argument 1,” specifies in its title the issue on appeal as whether the denial of a motion for summary judgment was arbitrary and capricious. The denial of a motion for summary judgment is not appealable following trial. Kelley v. Riccelli Enters. of Mass., Inc., 2010 Mass. App. Div. 81, citing Leavitt v. Mizner, 404 Mass. 81, 87 (1989). “The purpose of summary judgment is to bring litigation to an early conclusion without the delay and expense of a trial when no material facts are at issue, and it goes without saying that that purpose cannot be served after the case has gone to trial.” Id., quoting Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). The appeal of the summary judgment denial becomes further bizarre when one considers that the appealing party, Platinum, won the trial. Platinum then makes random accusations, such as the motion judge was “openly confused” during the summary judgment motion hearing. We find no confusion, but only inquiry, as is the role of a motion judge when confronted with a lack of clarity from a moving party. Platinum then chides the judge for not continuing the matter “sua sponte” and ensuring the file was complete. It is not the responsibility of the trial court or the appellate court to ensure competent representation. The second ground of appeal, a reference to G.L. c. 231, § 59H, the Massachusetts Declaration of Rights, and the First Amendment to the United States Constitution, is without sufficient clarity to discern the issue or argument. See, e.g., Atwater v. Commissioner of Educ., 460 Mass. 844, 853 n.8 (2011) (issues not rising to level of appellate argument deemed waived).

[Note 3] On March 30, 2016, the Supreme Judicial Court held in Van Liew v. Stansfield, 474 Mass. 31 (2016), that “any party in a case pending in the District Court who seeks to appeal from the denial or the allowance of a [G.L. c. 231,] § 59H special motion to dismiss should file a notice of appeal in the District Court for review directly by the Appeals Court rather than by the Appellate Division of the District Court.” Id. at 35-36. In this case, Platinum’s appeal was pending in the Appellate Division at the time of the issuance of the opinion in Van Liew.

[Note 4] “‘SLAPP’ is an acronym for Strategic Lawsuit Against Public Participation.” Office One, Inc. v. Lopez, 437 Mass. 113, 121 n.13 (2002). As will be discussed, the anti-SLAPP statute calls for the filing of a “special” motion to dismiss, which triggers a specific procedure for determining whether a filing was made solely to intimidate and harass.

[Note 5] For an excellent discussion of the history and reasoning of remedial legislation to address these abuses, see Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 5-6, 9 (1989).

[Note 6] The statute also calls for attorney’s fees to be awarded. In the present appeal, Sheppard seeks attorney’s fees, which we allow subject to Sheppard’s submissions and any opposition. Sheppard shall have fourteen days from the date of this opinion to file an application for fees and costs, together with appropriate supporting materials, with this Appellate Division. Platinum shall have fourteen days thereafter to respond.