MISC 20-000226

OCTOBER 16, 2020




On June 19, 2020, plaintiffs William D. Young, Richard H. Young, II, and Steven P. Young (the Youngs) filed a complaint against defendant Dorothy Risher (Risher) seeking adverse possession of property located in Billerica (the Property), a prescriptive easement, and declaratory judgment. The Youngs filed Plaintiffs' Ex Parte Motion for Lis Pendens on June 19, 2020, which was granted after a hearing on June 24, 2020. Defendant Dorothy Risher filed her answer to the complaint on July 29, 2020. On August 31, 2020, Risher filed a Special Motion to Dismiss pursuant to G.L. c. 231, § 59H, a Memorandum in Support of the Special Motion to Dismiss, Affidavit of Counsel, and Affidavit of Defendant, Dorothy Risher. The Youngs filed their Memorandum Opposing Defendant's Special Motion to Dismiss on September 28, 2020. The hearing for the motion took place on October 9, 2020 and this decision follows.

This action involves the Property, an approximately 22-acre parcel of land in Billerica of which William D. Young is a record owner. Compl. ¶¶ 32, 33. The Youngs are siblings and Risher is their aunt. Compl. ¶¶ 24, 43. Both parties have interest in the Property. Compl. ¶24-31. On September 4, 2019, Risher filed a petition to partition the property in Middlesex Probate and Family Court (the Partition Action). Defendant's Memorandum in Support of the Special Motion to Dismiss Ex. A.

A party may file a special motion to dismiss under G.L. c. 231, § 59H, if "the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth." In analyzing an anti-SLAPP motion, the court goes through several steps. The first step is to determine whether the moving party "demonstrate[s], through pleadings and affidavits, that each claim it challenges is based solely on its own protected petitioning activity, and that the claim has no other substantial basis." 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514 , 518 (2019) (Harrison II). If the moving party satisfies this initial burden, the burden then shifts to the nonmoving party to prove that "the anti-SLAPP statute nonetheless does not require dismissal" of its claims. Id. The nonmoving party can prove this by demonstrating either that "the moving party's petitioning activity was a ‘sham' and that the nonmoving party [...] has been injured as a result, or that its own claims are not SLAPP suits at all, i.e., they are both colorable and nonretaliatory." Id. at 516; see Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200 , 204 (2019).

The first issue here, then, is whether a petition to partition in the Partition Action is "petitioning activity" within the meaning of G.L. c. 231, § 59H. The statute defines "a party's exercise of its right of petition" as "any written or oral statement made before or submitted to a legislative, executive, or judicial body." Id.; see McLarnon v. Jokisch, 431 Mass. 343 , 347 (2000) (finding G.L. c. 231, § 59H broad enough to encompass filing for abuse protection orders and supporting affidavits as petitioning activities). Thus, "claims and related pleadings filed in court may be classified as petitioning activities." Duracraft Corp. v. Holmes Prods. Corps., 427 Mass. 156 , 168 n.20 (1998). The right of petition envisioned in the statute is of the sort where the moving party "has 'petition[ed] the government on [his or her] own behalf . . . in [his or her] status as [a] citizen.' Put another way, the petitioning at issue must be of the kind contemplated by the United States and Massachusetts Constitutions." Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479 , 485 (2017), quoting Kobrin v. Gastfriend, 443 Mass. 327 , 332 (2005). The Duracraft court noted that G.L. c. 231, § 59H, includes no requirement that the moving party's activity must involve a matter of public concern. Duracraft, 427 Mass. at 164. Within the context of G.L. c. 231, § 59H, the Partition Action could be interpreted as a petitioning activity.

For the purposes of this Memorandum and Order, the court need not decide that question. Assuming, arguendo, that the Partition Action is petitioning activity within the meaning of the statute, Risher has the burden demonstrating that the Youngs brought this action based solely on this petitioning activity. Harrison II, 483 Mass. at 518. Risher argues that the present case is being brought in order to prevent the appointment of a Commissioner and subsequent sale of the property in the petition to partition. In response, the Youngs rely in part on the Duracraft court's distinction between a claim being "based on" the petitioning activity and being "in response to" a petitioning activity. Duracraft, 427 Mass. at 168 n.20. This language "stands only for the proposition that counterclaims are not automatically ‘based on' a special movant's petitioning activity." 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162 , 171 n.10 (2017) (Harrison I). While the Youngs' case is surely brought in response to Risher's Partition Action, it is not based solely on that action. Rather, it is a claim to title over the Property that, if successful, would preclude any right to partition on the part of Risher. [Note 1] Thus, Risher has not shown that the Youngs brought this action based solely on Risher's petitioning activity.

Even if the Special Motion to Dismiss were to survive the initial hurdle, it would fail once the burden shifted to the plaintiffs, the Youngs. At this stage, the Youngs would have to prove that their claims were "not primarily brought to chill the special movant's legitimate petitioning activities." Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141 , 160 (2017). In making this assessment, the totality of the circumstances relevant to the Youngs' asserted purpose is taken into account. Id. As discussed, in this case, the Youngs, in response to Risher's claim for partition, seek to challenge Risher's title by asserting potentially legitimate claims for adverse possession, prescriptive easement, and declaratory judgment. A claim for title is, by definition, directed to the Property and to rights in the Property, not to the act of petitioning.

For the foregoing reasons, the Special Motion to Dismiss is DENIED.



[Note 1] Whether the Youngs should have brought their claims as affirmative defenses or counterclaims in the Partition Action is moot. The parties and the court agree that the Partition Action should be transferred to the Land Court, where it will be heard concurrently with this action.