477 Harrison Ave, LLC v. JACE Boston, LLC ( 2019 )

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SJC-12600
477 HARRISON AVE., LLC vs. JACE BOSTON, LLC, & another.1
Suffolk. January 8, 2019. - November 8, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
"Anti-SLAPP" Statute. Constitutional Law, Right to petition
government. Practice, Civil, Motion to dismiss. Abuse of
Process. Consumer Protection Act, Unfair or deceptive act.
Contract, Performance and breach, Implied covenant of good
faith and fair dealing.
Civil action commenced in the Superior Court Department on
March 23, 2015.
Following review by this court, 477 Mass. 162 (2017), a
special motion to dismiss was heard by Joseph F. Leighton, Jr.,
J.
The Supreme Judicial Court granted an application for
direct appellate review.
Andrew E. Goloboy for the plaintiff.
Mark S. Furman (Emily C. Shanahan also present) for the
defendants.
1 Arthur Leon. Leon is the manager of JACE Boston, LLC.
Leon and JACE Boston, LLC, are referred to individually and
collectively as the "abutters."
2
LENK, J. This appeal represents yet another chapter in the
ongoing saga involving these adjoining property owners. See 477
Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 163
(2017) (Harrison I). In March 2015, after skirmishes over a
period of years in a variety of forums, the plaintiff developer
filed a complaint against the defendant abutters alleging abuse
of process and violation of G. L. c. 93A. Id. Sequential duels
brandishing the "anti-SLAPP" act, G. L. c. 231, § 59H, followed.
Harrison I concerned the abutters' appeal from the denial of
their special motion to dismiss the developer's complaint.
Harrison I, supra. This clash, in contrast, involves the
developer's appeal from the denial of its special motion to
dismiss the abutters' amended counterclaims. These amended
counterclaims alleged breach of contract, breach of the implied
covenant of good faith and fair dealing, abuse of process, and
violation of G. L. c. 93A.2 We allowed the developer's
application for direct appellate review.
The developer maintains on appeal that the motion judge
erred in applying the analytical framework devised in Duracraft
2 An order denying a special motion to dismiss, pursuant to
G. L. c. 231, § 59H, is immediately appealable. See Blanchard
v. Steward Carney Hosp., Inc., 483 Mass. 200, 212-213 (2019)
(orders denying anti-SLAPP motion under augmented Duracraft
framework immediately appealable; see Duracraft Corp. v. Holmes
Prods. Corp., 427 Mass. 156 [1998] [Duracraft]).
3
Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998) (Duracraft),
and augmented in Blanchard v. Steward Carney Hosp., Inc., 477
Mass. 141, 159-161 (2017) (Blanchard I), for evaluating anti-
SLAPP motions to dismiss. It argues that the judge failed to
consider the evidence at each stage of the framework before
proceeding to the next, and ultimately in concluding that none
of the abutters' four amended counterclaims was a "strategic
lawsuit against public participation," known as a "SLAPP" suit.
See Blanchard I, supra at 157.
The augmented Duracraft framework was devised to be applied
sequentially. That is to say, the moving party (i.e., the party
bringing the special motion to dismiss, here, the developer)
must demonstrate, at the threshold stage, that the claims filed
against it (here, the amended counterclaims) are based solely on
the moving party's petitioning activity. If the moving party
(here, the developer) satisfies its burden, then the burden
shifts to the nonmoving party (here, the abutters) to
demonstrate at the second stage that the anti-SLAPP statute,
G. L. c. 231, § 59H, does not require dismissal of its claims.
The nonmoving party can do so by establishing either that the
moving party's petitioning activity was a "sham" and that the
nonmoving party (here, the abutters) 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. See Blanchard v.
4
Steward Carney Hosp., Inc., 483 Mass. 200, 204 (2019)
(Blanchard II).
Applying the burden-shifting framework in this sequential
manner to the developer's anti-SLAPP motion, we conclude that
none of the abutters' contract-based counterclaims, including
any portion of the counterclaim alleging violation of G. L.
c. 93A, is colorable and, therefore, the abutters cannot
demonstrate their claims are not SLAPP suits. The counterclaims
are based on the flawed premise that an agreement for judgment
ordinarily retains independent legal significance after a
judgment has entered incorporating the terms of the agreement.
The remaining counterclaims, alleging abuse of process and
violation of G. L. c. 93A, are based solely on the developer's
legitimate petitioning activities. Because they objectively
burden the developer's petitioning activities in this action, we
conclude that the abutters failed to demonstrate that any of
their counterclaims are not retaliatory. See Blanchard I, 477
Mass. at 160. We vacate the order denying the special motion to
dismiss the counterclaims, and remand the case for entry of an
order allowing the motion and for further proceedings consistent
with this opinion.
1. Background. Years of conflict have ensued since the
developer purchased the property located at 477 Harrison Avenue
in December of 2011. See Harrison I, 477 Mass. at 164-167. The
5
abutters repeatedly have opposed the developer's attempts to
redevelop the property in a variety of legal and administrative
venues. Id. at 165. The parties' efforts and counterefforts
were outlined previously, see id. at 164-167, and it serves no
purpose to detail them again here. It is enough to say that, in
2012, the developer successfully obtained zoning relief from the
zoning board of appeal of Boston (ZBA). Id. at 165. The
abutters challenged the ZBA's decision in the Superior Court
(2012 zoning appeal).
While the 2012 zoning appeal was pending, the abutters
commenced a declaratory judgment action concerning an agreement
between prior owners of the parties' respective properties
(declaratory judgment action). Id. at 165. After a jury-waived
trial, "a Superior Court judge ruled that this agreement . . .
precluded the [developer] from demolishing the party wall
between the two properties below the height specified in the
[agreement]." Id. The Appeals Court affirmed the judgment.
See JACE Boston, LLC v. Holland Dev., LLC, 89 Mass. App. Ct.
1108 (2016).
While these matters were pending, "and its redevelopment
plans thereby stalled, the [developer] opted for what it hoped
would be a faster path forward. In September, 2013, as the
parties' summary judgment motions awaited resolution in the
[2012 zoning appeal], the [developer] abandoned its request for
6
zoning relief, then on appeal, to pursue instead an 'as of right
project.'" Harrison I, 477 Mass. at 165. An agreement for
judgment was filed in the Superior Court memorializing the
abandonment. Judgment subsequently entered in the 2012 zoning
appeal.
Subsequently, the developer began redeveloping the
property. Even then, the parties' conflict continued. Id. at
165-166. In 2014, the developer sought additional zoning
variances and a conditional use permit to add more units to the
property. After a hearing on March 24, 2015, the ZBA granted
the requested relief, and the abutters again appealed (2015
zoning appeal). The day before that hearing, the developer
commenced the underlying action against the abutters, alleging
abuse of process and a violation of G. L. c. 93A, § 11. Id. at
166. The abutters responded with a special motion to dismiss
both claims, pursuant to the anti-SLAPP statute. Id. at 167.
The judge denied the motion, and the abutters appealed. That
appeal was the subject of Harrison I.
While Harrison I was pending, the abutters moved to dismiss
the developer's (amended) complaint, pursuant to Mass. R. Civ.
P. 12 (b) (6), 365 Mass. 754 (1974). According to the
developer, the abutters essentially claimed that the agreement
for judgment in the 2012 zoning appeal precluded the developer
from asserting its claims "to the extent they relate to conduct
7
which pre-dated the Agreement for Judgment or to conduct or
legal challenges contemplated in it." The Superior Court judge
denied the motion. Thereafter, the abutters filed an answer and
counterclaims, which they purported to assert "conditionally"
pending the outcome of their appeal in Harrison I.
Shortly thereafter, Harrison I was decided. We concluded
in that case that the abutters' special motion to dismiss
properly was denied as to the developer's G. L. c. 93A claim,
because that claim was not based solely on the abutters'
petitioning activity, as G. L. c. 231, § 59H, requires. See
Harrison I, 477 Mass. at 163. With respect to the developer's
abuse of process claim, however, we vacated the order dismissing
the claim and remanded the case for further proceedings in light
of the augmented framework announced in Blanchard I, 477 Mass.
at 159-161. See Harrison I, supra at 163-164. Following
remand, the judge again denied the abutters' special motion to
dismiss the abuse of process claim. The abutters did not appeal
from that ruling. They, instead, filed amended counterclaims
expressly removing the purportedly conditional aspect of the
counterclaims.
The developer parried by filing its own special motion to
dismiss the amended counterclaims, pursuant to G. L. c. 231,
§ 59H. The judge denied the motion, and this appeal followed.
8
2. Legal standard. Under G. L. c. 231, § 59H, a party may
file a special motion to dismiss if "the civil claims,
counterclaims, or cross claims" against it are based solely on
its exercise of the constitutional right to petition. The
burden-shifting framework devised in Duracraft, 427 Mass. 156,
and augmented in Blanchard I, 477 Mass. at 159-161, is used to
evaluate such motions. At the threshold stage, the moving party
(here, the developer) must demonstrate, 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. See Wenger v. Aceto, 451 Mass. 1, 5
(2008). If the moving party meets its burden, the burden shifts
at the second stage to the nonmoving party (here, the abutters),
to demonstrate that the anti-SLAPP statute nonetheless does not
require dismissal.
A nonmoving party may satisfy its burden at the second
stage in one of two ways. See Blanchard I, 477 Mass. at 159–
160. The first path, which tracks the statutory language,
requires the nonmoving party (here, the abutters) to establish
"by a preponderance of the evidence that the [moving party, here
the developer] lacked 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 moving
party's acts caused "actual injury to the responding party,"
9
G. L. c. 231, § 59H. The second path, laid out in Blanchard I,
requires the nonmoving party (here, the abutters) to establish,
such that the motion judge can conclude with fair assurance,
that its claim is not a "meritless" SLAPP suit "brought
primarily to chill the special movant's [here, the developer's]
legitimate petitioning activities." Blanchard I, supra.
3. Sequential application. The augmented Duracraft
framework is intended to be applied sequentially. See
Blanchard I, 477 Mass. at 159. Beginning at the threshold
stage, the motion judge "consider[s] the pleadings and
supporting and opposing affidavits stating the facts upon which
the liability or defense is based," and evaluates whether the
party that has the burden of proof has satisfied it. G. L.
c. 231, § 59H. Sequential application of the framework is
especially significant for purposes of the newly augmented
second stage of the framework. By proceeding systematically, by
the time the motion judge reaches the last step, he or she will
be in a more informed position to make an assessment of the
"totality of the circumstances pertinent to the nonmoving
party's asserted primary purpose in bringing its claim," as the
augmented framework requires. Blanchard I, supra at 160.
Failing to apply the augmented framework to each challenged
claim sequentially hampers the motion judge's ability to
determine with "fair assurance" whether the challenged claims
10
were "'brought primarily to chill' the [moving party's]
legitimate exercise of its right to petition." Blanchard I, 477
Mass. at 159-160, quoting Duracraft, 427 Mass. at 161. If the
threshold stage is skipped, for example, there may not be
focused consideration of the nature of the nonmoving party's
claims, i.e., whether the challenged claims were "based on" the
moving party's (here, the developer's) petitioning activities,
and the context in which they were raised. Those considerations
are relevant at the framework's second stage. While it may be
tempting to skip straight to the very last step of the augmented
second path of that second stage, as the motion judge did in
this case, his decision to do so illustrates the risks inherent
in that approach. We conclude that the developer's special
motion to dismiss should have been granted.
4. Application to contract counterclaims. Counts one and
two of the abutters' amended counterclaims allege breach of
contract and breach of the implied covenant of good faith and
fair dealing, respectively. They assert that, "[t]o the extent
that [the developer's] claims in the present case arise from the
2012 Zoning Appeal, the Declaratory Judgment Action, and/or the
2015 Zoning Appeal, [the developer] breached the Agreement for
[Judgment]," and the implied covenant of good faith and fair
dealing implied therein.
11
Pursuant to the agreement for judgment, the parties agreed
to "waive, abandon, forfeit, [forgo] and release, all variances,
conditional use permissions and any and all other rights and
relief granted by or under the Decision of the Board of Appeal
of the City of Boston dated July 24, 2012," which was the
subject of the 2012 zoning appeal. For its part, the developer
reserved the right to seek "the same relief previously requested
and/or . . . any other relief," while the abutters reserved the
right to "object and challenge such permit and/or zoning
relief."
In addition, with the exception of a pending building
permit application, the agreement for judgment provided that
both parties reserved "their rights to object to and/or appeal
from any pending, issued, or future building permit applications
and/or zoning relief," and reserved "all rights, claims, relief
and defenses which have been or may in the future be asserted"
in the declaratory judgment action. The parties acknowledged
that the agreement would "have no preclusive effect as to any
request by [the developer] for a building permit and/or zoning
relief." The agreement further provided that it was not to be
construed as a judgment on the merits, that each party would
bear its own attorney's fees and costs, and that the parties
waived their rights "to appeal this Agreement for Judgment."
12
a. Developer's threshold burden. The contract-based
counterclaims allege that, by commencing this litigation, the
developer committed a breach of the agreement for judgment in
the 2012 zoning appeal and the covenant of good faith and fair
dealing implied therein. Commencement of litigation is
quintessential petitioning activity. See Harrison I, 477 Mass.
at 169; Van Liew v. Stansfield, 474 Mass. 31, 36 (2016);
Duracraft, 427 Mass. at 168 n.20; Ehrlich v. Stern, 74 Mass.
App. Ct. 531, 538 (2009). We conclude, in addition, that the
developer met its burden of establishing that "that the only
conduct complained of is petitioning activity," Wenger, 451
Mass. at 6, and that there is no "substantial nonpetitioning
basis" for the claims, Harrison I, supra.
We recognize that, even where petitioning activity is
involved, a claim for breach of contract (or breach of the
implied covenant of good faith and fair dealing) sometimes may
present a substantial basis other than the petitioning activity
itself for purposes of the anti-SLAPP act. See Duracraft, 427
Mass. at 165-168. In this case it does not. The proposed
contract -- the agreement for judgment -- was negotiated in the
context of ongoing litigation, was filed in court, and sought
relief from the court, and judgment entered in accordance with
its terms. The agreement for judgment, and what flowed from it,
are petitioning activities. Other than those activities, there
13
is no conduct that would provide a "substantial basis" for the
abutters' counterclaims. The developer crossed Duracraft's
threshold stage, and successfully invoked the anti-SLAPP
statute's protection.
b. Abutters' second-stage burden. At the second stage,
the burden shifts to the abutters to demonstrate in one of two
ways that the anti-SLAPP statute does not require dismissal of
their counterclaims.
i. Statutory first path. With regard to the statutory
first path, the abutters contend that both counts of the
developer's complaint -- alleging abuse of process and violation
of G. L. c. 93A -- are "devoid of any reasonable factual support
or any arguable basis in law," because the developer failed to
demonstrate damages. G. L. c. 231, § 59H. See Blanchard I, 477
Mass. at 156 n.20; Baker v. Parsons, 434 Mass. 543, 553-554
(2001). As we described in Harrison I, the developer's abuse of
process claim rests on six instances of petitioning activity:
"(1) the submission of written and oral statements to the
[Boston Redevelopment Authority] 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 [the developer's building manager]; and
(6) the communications with [the inspectional services
department (ISD)] and various permits granted by ISD."
Harrison I, 477 Mass. at 173-174. The claim for violation of
G. L. c. 93A is predicated on the same factual averments, as
14
well as the additional allegation that the abutters filed two
false insurance claims. Id. at 171. In its amended complaint,
the developer seeks three principal categories of damages
arising out of these events: (1) the costs associated with the
delay of the property's redevelopment; (2) the loss of proposed
penthouses; and the (3) loss of residential units on the
building's second floor.
The pleadings and affidavits adequately establish that the
claims of damage were not devoid of merit.3 The developer's
manager attested that the abutters' conduct caused delays to the
redevelopment schedule, forced the redesign of the second floor
from residential use to commercial use, and resulted in the loss
of windows and balconies. The manager also attested that the
loss of residential second-floor units caused the developer to
3 Unlike a motion to dismiss brought under Mass. R. Civ.
P. 12 (b) (6), 365 Mass. 754 (1974), a motion to dismiss
pursuant to the anti-SLAPP statute "does not test the
sufficiency" of a claim. 477 Harrison Ave., LLC v. JACE Boston,
LLC, 477 Mass. 162, 171 n.11 (2017) (Harrison I). For purposes
of the threshold determination whether the conduct concerns only
petitioning activities, we consider the claims that have been
pleaded. Id. For purposes of the second stage, we consider the
pleadings, as well as the "supporting and opposing affidavits
stating the facts upon which the liability or defense is based."
G. L. c. 231, § 59H. In Harrison I, supra at 174-175, for
example, we concluded that the developer met its second-stage
burden of demonstrating "actual injury" caused by the abutters'
application for a criminal complaint, by means of an affidavit
from the developer's manager stating that he suffered
"embarrassment," "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."
15
"suffer millions of dollars in damages." He averred that the
developer has been required to "devote time and energy to
addressing" false insurance claims, and that being required to
attend a probable cause hearing in connection with the criminal
complaint caused him embarrassment. See Harrison I, 477 Mass.
at 174-175, citing Millennium Equity Holdings, LLC v. Mahlowitz,
456 Mass. 627, 645, 650 (2010) (embarrassment and financial
concern regarding criminal complaint constitute "actual injury"
for purposes of anti-SLAPP statute).
Demonstrating that there is "no credible factual or legal
basis" for the developer's claims presents a very high bar.
Blanchard I, 477 Mass. at 156 n.20. The abutters failed to
clear it. We cannot say that either of the claims raised in the
complaint is "devoid of any reasonable factual support or any
arguable basis in law." See G. L. c. 231, § 59H.
ii. Augmented second path. The final path of the
augmented framework permits a litigant to avoid dismissal of its
claims by establishing that its claims, although "based on"
petitioning activity, nonetheless are not SLAPP suits. See
Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 204
(2019) (Blanchard II). As applied to this case, the abutters
were required to establish, such that the motion judge could
conclude with fair assurance, that each counterclaim was
(a) colorable, and (b) not brought with the "primary motivating
16
goal" of chilling the developer's exercise of its petitioning
rights, i.e., that it was not retaliatory. See id. at 204, 209.
We consider the contract claims under that standard.
To demonstrate a colorable claim for breach of contract,
the abutters were required to establish four elements: an
agreement between the parties, supported by valid consideration;
that the abutters were ready, willing, and able to perform; that
the developer committed a breach of the contract; and that the
abutters sustained damages. See Singarella v. Boston, 342 Mass.
385, 387 (1961). A claim for breach of the implied covenant of
good faith and fair dealing requires a showing that one party
violated the reasonable expectations of the other party
concerning the obligations of the contract. See Eigerman v.
Putnam Invs., Inc., 450 Mass. 281, 287-288 (2007). The motion
judge summarily concluded that the abutters "adequately state[]
causes of action for both breach of contract and breach of the
implied covenant of good faith [and fair dealing]." We
disagree.
The parties entered into an agreement seeking entry of
judgment on particular terms, i.e., a consent judgment. See
Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29,
30 (1983). A Superior Court judge thereafter entered the
parties' agreement as a judgment of the court; no provision was
made that the agreement would survive the entry of judgment.
17
See Kelton Corp. v. County of Worcester, 426 Mass. 355, 359
(1997) ("A consent judgment . . . conclusively determines the
rights of the parties as to all matters within its scope"). At
that point, therefore, the parties' private agreement ceased to
exist as an independent contract. See Bercume v. Bercume, 428
Mass. 635, 641 (1999) ("merger of an agreement in a judgment is
a substitution of the rights and duties under the agreement for
those established by the judgment or decree").
We recognize that "[t]here is in an agreement for
judgment, . . . an element of contract." See Bowers, 16 Mass.
App. Ct. at 34. We recognize also that that contractual element
may be taken into account if a party seeks relief from judgment.
See id. at 35. See also Thibbitts v. Crowley, 405 Mass. 222,
226-229 (1989) (court may not relieve parties of consent
judgment that delineates terms of settlement). Absent any
express provision to the contrary, however, where a judgment
incorporates the terms of an agreement, it does not follow that
an agreement for judgment is enforceable as a private contract
following the entry of that judgment. See Kelton Corp., 426
Mass. at 360 (exceptions are "extinguished unless specifically
noted in the judgment or otherwise incorporated into the
judgment"); Halpern v. Rabb, 75 Mass. App. Ct. 331, 338-339
(2009) (where provisions of separation agreement merged into
judgment, action for breach of agreement could not be
18
maintained). Cf. Quaranto v. DiCarlo, 38 Mass. App. Ct. 411,
412-413 (1995) (where agreement for judgment did not incorporate
terms of settlement agreement, agreement could be independently
enforced), citing Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 381 (1994) (where court order dismissing action
incorporated settlement agreement, breach of agreement violates
order; otherwise, ancillary jurisdiction absent).
While there are remedies available to the abutters if there
has been noncompliance with the 2012 zoning appeal judgment, an
independent action for breach of contract is not one of them.
See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302,
313 (1991) (civil contempt action stands as "authoritative
enforcement of the consent judgment"); Sodones v. Sodones, 366
Mass. 121, 129-130 (1974) (noncompliance with court order
redressed through contempt proceedings). See also Kelton Corp.,
426 Mass. at 358-359 (clarification or modification of
judgment); Thibbitts, 405 Mass. at 227 (burden to modify consent
judgment more formidable than if judgment had been entered after
trial).
Absent evidence that the terms of the parties' agreement
survive the entry of judgment, the claims for breach of contract
and breach of the implied covenant of good faith and fair
dealing are not colorable. See Blanchard II, 483 Mass. at 207-
209. The abutters, therefore, failed to meet their burden at
19
the second stage of the augmented Duracraft framework.
Accordingly, the denial of the special motion to dismiss the
counterclaims for breach of contract and breach of the implied
covenant of good faith and fair dealing must be vacated.
5. Application to counterclaims for abuse of process and
violation of G. L. c. 93A. Counts three and four, the amended
counterclaims alleging abuse of process and violation of G. L.
c. 93A, § 11, respectively, are principally founded on the same
factual allegations. Both counterclaims allege that the
developer "wrongfully used process by bringing the [amended
complaint] for ulterior purposes." With respect to the G. L.
c. 93A counterclaim, the abutters additionally argue that the
developer's alleged breach of the implied covenant of good faith
and fair dealing violated G. L. c. 93A.4 Considering both claims
under the augmented Duracraft framework, we conclude that the
developer met its burden at the threshold stage, and that the
abutters failed to carry their burden at the second stage,
4 The amended counterclaim alleging violation of G. L.
c. 93A generally incorporates factual allegations that precede
it, but the only basis specifically identified as violating the
statute is abuse of process.
Both in the Superior Court and on appeal, however, the
abutters additionally identify breach of the implied covenant of
good faith and fair dealing as a basis for the counterclaim.
Having concluded that the claim for breach of the implied
covenant of good faith and fair dealing is not colorable, and no
argument having been raised as to any other basis for the G. L.
c. 93A claim, we consider only abuse of process.
20
because the counterclaims objectively burden the developer's
petitioning rights in this litigation.
a. Developer's threshold burden. The anti-SLAPP statute
does not immunize a plaintiff from counterclaims that are "filed
in response to the claim"; it does, however, provide respite
from counterclaims that are based "solely on" that petitioning
activity. Duracraft, 427 Mass. at 168 n.20. See Harrison I,
477 Mass. at 171 n.10. In this case, these counterclaims
challenge the developer's contemporaneous actions in "bringing
the present action," and "wrongfully using process by bringing
the present action for ulterior purposes." In said
circumstances, "an actionable abuse of process claim will always
be, at least in part, based on a special movant's petitioning
activities." Harrison I, supra at 168-171. Taking the
counterclaims as they have been pleaded, the developer met its
burden of establishing that they are based solely on the
developer's petitioning activity. See id. at 171 n.11.
To be sure, the abutters allege that the developer filed
its complaint for ulterior purposes, including
"(a) to force [the abutters] to refrain from opposing the
penthouse variances sought by [the developer] in 2015; (b)
to force [the abutters] to give up [their] property
interest in the [parties' shared wall]; (c) to force [the
abutters] to grant [the developer] an easement in a portion
of [the abutters' property] in the event the building on
[that property] was ever removed; (d) to force [the
abutters] to agree to put a street on the [their property]
in the area adjacent to the [developer's property] in the
21
event the building on the [abutters' property] was removed;
(e) to retaliate against [the abutters] for exercising
their constitutional right to petition the government and
protect [the abutters'] property rights; and/or (f) to
force [the abutters] to spend thousands upon thousands of
dollars defending the case."
While those allegations may be relevant to the abutters' claim
that the developer had "ulterior purposes" for filing its
complaint, our focus at the threshold stage is limited to
determining whether the "the actual conduct complained of" is
petitioning activity. See Harrison I, 477 Mass. at 170. The
abutters do not claim that the alleged "ulterior purposes"
themselves equate to abuse of process. We conclude, therefore,
that the developer met its threshold burden of demonstrating
that the abuse of process counterclaim has no substantial basis
other than the developer's contemporaneous petitioning activity.
The same is true of the counterclaim alleging violation of
G. L. c. 93A. The only conduct -- apart from breach of the
implied covenant of good faith and fair dealing, a claim we have
found not to be colorable -- that the abutters press as a
violation of G. L. c. 93A is the developer's alleged abuse of
process. No argument having been raised that any other conduct
violates the statute, we conclude that the developer met its
threshold burden as to this claim as well.
b. Abutters' second-stage burden. Because we conclude
that the developer met its threshold burden with respect to the
22
abuse of process and G. L. c. 93A counterclaims, at the second
stage "the burden shifts to the nonmoving party, here the
[abutters]," as provided in the anti-SLAPP statute. Harrison I,
477 Mass. at 168. For the reasons stated, the abutters did not
demonstrate, as the first path requires, that the developer's
complaint was devoid of any reasonable factual support or
arguable basis in law. See G. L. c. 231, § 59H. We therefore
turn to the augmented second path, and consider whether the
abutters established that the counterclaims were not SLAPP
suits. See Blanchard I, 477 Mass. at 160. In that regard, we
conclude that, while the counterclaims are colorable, see L.B.
v. Chief Justice of the Probate & Family Court Dep't, 474 Mass.
231, 241 (2016), they objectively burden the developer's ongoing
petitioning rights in this action. For that reason, the
abutters cannot demonstrate that the counterclaims are not SLAPP
suits. Therefore, the order denying the special motion to
dismiss the counterclaims must be vacated.
i. Colorability. A counterclaim for abuse of process has
three elements: (1) "process was used," (2) "for an ulterior or
illegitimate purpose," (3) "resulting in damage" (quotation and
citation omitted). Millennium Equity Holdings, LLC, 456 Mass.
at 636. "Proof of the groundlessness of an action is not an
essential element of an action for abuse of process." Fishman
v. Brooks, 396 Mass. 643, 652 (1986). Thus, an abuse of process
23
counterclaim may be brought even where the plaintiff has a
meritorious claim. It is, indeed, "immaterial that the process
was properly issued, that it was obtained in the course of
proceedings which were brought with probable cause and for a
proper purpose or even that the proceedings terminated in favor
of the person instituting or initiating them." Gutierrez v.
Massachusetts Bay Transp. Auth., 437 Mass. 396, 408 (2002). See
Fishman, supra ("[a finding that] the person commencing the
litigation knew or had reason to know his [or her] claim was
groundless is relevant . . . as tending to show that the process
was used for an ulterior purpose"). Much like a SLAPP suit, at
its essence, abuse of process is 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" (citation omitted). Fabre v. Walton, 436 Mass. 517, 519
n.3 (2002), S.C., 441 Mass. 9 (2004).
As to the first element, by filing its complaint, the
developer invoked process. See Jones v. Brockton Pub. Mkts.,
Inc., 369 Mass. 387, 389 (1975). See also Harrison I, 477 Mass.
at 169. Likewise, there is no real dispute concerning the
second element. The abutters alleged, with supporting
affidavits, that the developer's "ulterior" purpose in filing
the lawsuit was to obtain collateral advantages, e.g., to compel
the abutters to refrain from opposing the developer's efforts to
24
obtain variances, to surrender their property interests, to
grant an easement, and to agree to the placement of a street.
See Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000)
(abuse of process involves effort to "obtain a collateral
advantage, not properly involved in the proceeding itself, such
as the surrender of property" [citation omitted]). We
acknowledge as well that the damages for abuse of process
include ongoing costs of defending the litigation, as the
abutters claim. See Millennium Equity Holdings, LLC, 456 Mass.
at 645 (damages for abuse of process include "the costs of
defending against the improper action"). Indeed, the abutters
allege that one of the developer's ulterior motives in filing
the complaint was to "force [the abutters] to spend thousands
upon thousands of dollars defending the case." The evidence was
sufficient to state a colorable counterclaim that the
developer's pursuit of the litigation was an abuse of process,
because it was brought for an ulterior or illegitimate purpose.
As stated, the abutters' G. L. c. 93A counterclaim is based
on the same factual allegations as their abuse of process
counterclaim. See note 4, supra. That claim alleges that the
developer's use of process for ulterior purposes violates G. L.
c. 93A. See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542,
552 n.9 (2018), citing Refuse & Envtl. Sys., Inc. v. Industrial
Servs. of Am., Inc., 932 F.2d 37, 43 (1st Cir. 1991) (litigation
25
that constitutes abuse of process may qualify as unfair and
deceptive practice under G. L. c. 93A). Assuming, for purposes
of discussion, as the developer has alleged, that the parties
are engaged in trade or commerce, we are satisfied that there
was no error in the judge's conclusion that a colorable claim
for violation of G. L. c. 93A has been established.
ii. Retaliatory purpose. As the Duracraft framework was
augmented in Blanchard I, an anti-SLAPP motion to dismiss may be
defeated if the nonmoving party (here, the abutters)
establishes, such that the motion judge can conclude with fair
assurance, that the "primary motivating goal" in bringing the
challenged claim was "not to interfere with and burden [the]
defendant['s] . . . petition rights, but to seek damages for the
personal harm to [it] from [the] defendant['s] alleged . . .
[legally transgressive] acts.'" Blanchard I, 477 Mass. at 160,
quoting Sandholm v. Kuecker, 2012 IL 111443, ¶ 57. This is an
insurmountable burden in a case, such as this, where the
"damages for the personal harm" are inextricably entwined with
the contemporaneous conduct of the litigation itself. In that
circumstance, the counterclaim objectively burdens the opposing
party's contemporaneous petitioning rights by, among other
things, raising the specter of mounting liability for defense
costs and other damages associated with the ongoing litigation.
26
Viewed objectively, a defendant's primary motivation in
that circumstance is to burden the plaintiff's petitioning
rights by hanging the possibility of ever-increasing liability,
like the sword of Damocles, over the plaintiff's head. That is
precisely the scenario presented here.
The parties have had a contentious relationship for years.
After the developer filed its complaint, the abutters twice
sought dismissal: they filed both an anti-SLAPP motion to
dismiss, and then a motion to dismiss pursuant to Mass. R. Civ.
P. 12 (b) (6). Although the Massachusetts Rules of Civil
Procedure provide no such mechanism, the abutters purported to
file counterclaims "conditionally," which we take to mean that
they would not press the claims, or seek associated damages, if
the developer's complaint were dismissed.
Only after their efforts to dispose of the litigation
failed, and the complaint was allowed to proceed, did the
abutters amend the counterclaims to remove their supposed
"conditional" nature. The abutters then sought damages,
including attorney's fees and costs associated with defending
the litigation, as well as for the individual defendant's
"emotional stress and suffering as a result of being
individually named as a defendant in this action."
Pragmatically, a counterclaim that is solely "based on"
petitioning activity in the same action, and that seeks damages
27
for injury caused by that same petitioning, may not be defeated
by following the augmented second path established in
Blanchard I. In that circumstance, a party cannot establish,
such that the "motion judge may conclude with fair assurance,"
that the claim does not give rise to a SLAPP suit.5 Blanchard I,
477 Mass. at 160. The developer established that the
counterclaims were solely based on its petitioning activities,
as G. L. c. 231, § 59H, requires, and that there was no
substantial nonpetitioning basis for them. At the second stage,
because the abutters failed to demonstrate that the developer's
claims were devoid of merit, as the first path of the augmented
Duracraft framework provides, and they cannot establish that
their counterclaims do not have a retaliatory purpose, as the
5 We leave for another day the question whether a
counterclaim for abuse of process, or an associated counterclaim
alleging violation of G. L. c. 93A, is compulsory for purposes
of Mass. R. Civ. P. 13 (a), as amended, 423 Mass. 1405 (1996).
See Ladd v. Polidoro, 424 Mass. 196, 200 (1997) ("Where success
or failure depends on the credibility of contesting parties, a
litigant should not be subjected to the risk that, if the jury
reject his or her position, that same jury [or another one] will
conclude that he or she knew from the beginning that the claim
was groundless").
In Harrison I, 477 Mass. at 176, we remanded the
developer's abuse of process claim to the Superior Court "to
allow the [developer] to show that its abuse of process claim is
not a 'SLAPP' suit under the augmented Duracraft framework."
Unlike the abutters' counterclaims, the developer's abuse of
process claim does not implicate the abutters' concurrent
petitioning rights but, rather, involves petitioning activities
that have concluded.
28
second path provides, the developer's special motion to dismiss
must be allowed.
6. Conclusion. We caution against the weaponization of
the anti-SLAPP statute. In our view, it is not properly used
either as cudgel to bludgeon an opponent's resolve to exercise
its petitioning rights, or as a shield to protect claims that,
although colorable, were brought primarily to chill another
party's legitimate petitioning activity. Applying that
principle here, we conclude that a counterclaimant asserting
damages caused by the conduct of the same proceeding, e.g.,
attorney's fees and costs, cannot establish that its
counterclaim is not a SLAPP suit for purposes of the second
stage of the Duracraft framework, as augmented in Blanchard I.
Viewed objectively, the primary motivation of such a claim is to
burden the opposing party's petitioning rights. See Blanchard
I, 477 Mass. at 160.
The order denying the developer's special motion to dismiss
is vacated, and the matter is remanded to the Superior Court for
entry of an order allowing the motion.
So ordered.