FERREIRA v. DELOID (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendants, Claire J. DeLoid and her counsel, Joseph Coppola, appeal from orders of the Superior Court denying their respective special motions to dismiss pursuant to the anti-SLAPP ³ statute, G. L. c. 231, § 59H. That statute is intended to deter “meritless” litigation used to “intimidate opponents' exercise of rights of petitioning and speech” (citation omitted). Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998). Because the motion judge failed to properly apply § 59H's burden-shifting framework established by Duracraft Corp., supra at 167-168, and its progeny, we vacate the orders and remand for further proceedings.

Background. The plaintiff's son, Jamie Ferreira, was prosecuted in 2011 for defrauding defendant DeLoid.⁴ He was alleged to have leveraged a fake winning lottery ticket, fictitious persons, and fraudulent documents to convince DeLoid to loan him $ 1.3 million over a number of years.⁵ He then used those proceeds to purchase various costly items for himself, his parents, and his friends, including houses, boats, cars, and parcels of land.⁶ In December 2011, while the criminal matter was pending, DeLoid, through her counsel Coppola, filed a civil action against the plaintiff, her son, and others to recover the assets. The civil complaint was stayed pending the outcome of the criminal trial.

Five years later, when DeLoid's civil complaint was still pending, the plaintiff filed a pro se civil action against DeLoid, Coppola, a police officer from the Carver Police Department, and the two prosecutors who handled her son's case. In that complaint she alleged that the prosecution of her son and the civil suit against her were the products of a civil conspiracy to commit fraud formulated by the defendants.

DeLoid and Coppola both filed special motions to dismiss pursuant to § 59H. The judge denied both motions, albeit on different grounds.⁷ In denying DeLoid's motion the judge reasoned that Ferreira's complaint was, in essence, a counterclaim to DeLoid's civil suit, and that § 59H did not bar such claims. Coppola's motion was denied because the judge found he was not exercising his own right to petition by filing the civil lawsuit on behalf of his client.

On appeal, DeLoid and Coppola argue that the judge erred in three distinct ways: (1) misapplying § 59H's burden-shifting framework; (2) ruling that the anti-SLAPP statute did not apply to a “counterclaim”; and (3) ruling that § 59H does not shelter an attorney who helps his client conduct petitioning activity.

Discussion. Under § 59H, parties may file special motions to dismiss if “the civil claims, counterclaims, or cross claims” against them are based upon the moving party's exercise of its constitutional right to petition. G. L. c. 231, § 59H. To succeed, the moving party must make a threshold showing, based upon the pleadings and affidavits, that the claims alleged arise solely from protected petitioning activity and have no substantial basis other than, or in addition to, the petitioning activity. Wenger v. Aceto, 451 Mass. 1, 5 (2008). If such a showing is made, the burden then shifts to the nonmoving party to show that the “moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law” and “the moving party's acts caused actual injury to the responding party.” ⁸ Cadle Co., 448 Mass. at 249, quoting G. L. c. 231, § 59H. Once the burden shifts, “[t]he critical determination is not whether the petitioning activity in question will be successful, but whether it contains any reasonable factual or legal merit at all.” Wenger, 451 Mass. at 7.

Here, the motion judge erred by not applying this framework to either motion. Instead, he mistakenly concluded that the provisions of the anti-SLAPP statute do not extend to counterclaims or suits against attorneys sued for representing their petitioning clients. The statute explicitly extends to counterclaims. Likewise, attorneys sued for voicing the positions of their petitioning clients are protected by the anti-SLAPP statute. The “statute would provide but hollow protection for citizens who wish to exercise their right of petition if statements made by an attorney on their behalf were not covered by the [statute] to the same extent as statements made by them directly.” Plante v. Wylie, 63 Mass. App. Ct. 151, 157 (2005).

Here, because the mandated Duracraft burden-shifting framework was never applied, we vacate the orders denying the special motions to dismiss and remand for proceedings consistent with this memorandum and order.⁹

So ordered.

Vacated and remanded

FOOTNOTES

3.   SLAPP is an acronym for “strategic litigation against public participation.” Cadle Co. v. Schlictmann, 448 Mass. 242, 242 n.2 (2007).

4.   The record indicates that Jamie Ferreira was charged with larceny, forgery, uttering a false check, and uttering false lottery tickets, amongst other charges.

5.   Jamie Ferreira also gave DeLoid a fraudulent power of attorney to cash the fake lottery ticket upon his death and a fraudulent form from the State Lottery Commission that relinquished his “winnings” to her. Later, he showed DeLoid a check for $ 774,500 from a “medical malpractice claim” made out to “Jamie Ferreira (only)” as proof of his ability to repay her, then told DeLoid that he had given his attorney “Janice Manoog” instructions to pay DeLoid using the proceeds from that check.

6.   DeLoid alleged that Jamie Ferreira had used DeLoid's money to buy the plaintiff a cranberry bog and a 2010 Cadillac GTS.

7.   DeLoid filed a motion to dismiss due to a prior pending action alongside her special motion to dismiss under § 59H. The judge allowed the motion to dismiss on the same day that he denied the special motion. Coppola was later allowed to join the dismissal of the suit against DeLoid. The underlying claims are therefore no longer at issue. That notwithstanding, DeLoid and Coppola pursue this appeal because successful anti-SLAPP motions provide for mandatory attorney's fees and costs.

8.   The motion judge's orders were entered three months prior to the Supreme Judicial Court's decision in Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141 (2017). After Blanchard, the nonmoving party could also meet its second prong burden by “demonstrating that each such claim was not primarily brought to chill the special movant's legitimate petitioning activities.” Id. at 160.

9.   Because we have remanded the matter, we do not act on DeLoid and Coppola's request for attorney's fees.