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Appeals Court of Massachusetts.



Decided: February 05, 2021

By the Court (Wolohojian, Henry & Singh, JJ.2)


In this interlocutory appeal, the defendant (Himes) challenges the denial of her special motion to dismiss, which was made pursuant to G. L. c. 231, § 59H (the anti-SLAPP statute). We affirm.

Using a Housing Court preprinted form, the plaintiff (Diplomat) brought the underlying summary process complaint seeking to evict the defendants, and alleging that they “occupy [certain] premises ․ unlawfully and against the right of [Diplomat] because [they] continue to hold over and occupy said premises following a mortgage foreclosure and beyond the time provided in the Notice to Vacate.”3 In addition to seeking that the Lozanos be evicted from the premises, the complaint sought use and occupancy damages from March 1, 2018, in an amount to be determined at trial.

The Lozanos thereafter filed a special motion to dismiss the summary process complaint pursuant to the anti-SLAPP statute.4 In broad summary, the Lozanos argued that the summary process action was “based on” their petitioning activities by virtue of a history of separate actions concerning the property. More specifically, the Lozanos alleged that in November 2018, they filed suit in Middlesex Superior Court against Diplomat (and others) to quiet title and recover damages (Middlesex action 5 ). While the Middlesex action was pending, Diplomat filed a summary process complaint against the Lozanos in the Worcester Division of the Housing Court (Worcester action 6 ). The Worcester action was dismissed without prejudice, pursuant to Mass. R. Civ. P. 41 (a) (1), 365 Mass. 803 (1974), by stipulation of the parties dated February 20, 2019. The stipulation stated that “[t]he Parties agree that [the summary process claims and counterclaims] will be litigated in the pending ․ Middlesex [action].”

Two months later, on April 24, 2019, the Middlesex action was dismissed without prejudice on the court's initiative because the Lozanos failed to file proof of service. The Lozanos claim that they had properly served the Middlesex action defendants, but that their process server had failed to deliver proof of service to them for filing. Rather than trying to obtain proof of service from their process server so that the Middlesex action could be reinstated, the Lozanos chose instead to file a new action in Barnstable Superior Court (Barnstable action 7 ). The Barnstable action was filed on May 8, 2019, but there is no indication that the Lozanos served Diplomat with the complaint or otherwise notified Diplomat of the filing of the complaint at that time.

On May 15, 2019, without knowing of the Barnstable action, Diplomat filed the underlying summary process complaint. On May 17, 2019, counsel for the Lozanos “specifically reached out to Diplomat concerning the unexpected dismissal [of the Middlesex action] to notify it that [the] Lozanos were working to address the dismissal,” but the Lozanos did not specifically inform Diplomat of the Barnstable action until May 22, 2019.

Discussion.8 We review the denial of a special motion to dismiss pursuant to G. L. c. 231, § 59H, for an error of law or an abuse of discretion. See Marabello v. Boston Bark Corp., 463 Mass. 394, 397 (2012); O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 496 (2017).

“The special motion procedure employs a two-stage framework.” Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 484 (2017). First, the movant must “make a threshold showing through the pleadings and affidavits 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., 427 Mass. 156, 167-168 (1998). The burden then shifts to the nonmoving party “to demonstrate that the anti-SLAPP statute nonetheless does not require dismissal ․ in one of two ways.” 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 518 (2019). The first path tracks the statutory language and requires the nonmoving party to show by a preponderance of the evidence that (1) the movant lacked any reasonable factual support or arguable basis in law for its petitioning activity and (2) the movant's acts caused actual injury to the responding party. Id. See G. L. c. 231, § 59H. The second path requires the nonmoving party “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 petitioning activity (quotations and citation omitted). 477 Harrison Ave., LLC, supra at 518-519. See Blanchard v. Steward Carney Hosp., Inc. 477 Mass. 141, 159 (2017) (second path augments Duracraft framework in order to narrow “problematic sweep of the [anti-SLAPP] statute” and “distinguish meritless from meritorious claims” [citation omitted]). This framework is intended to be applied sequentially. 477 Harrison Ave., LLC, supra at 519.

“At the first stage, the moving party has the burden to demonstrate ‘that the claims against it are, in fact, “based on” its petitioning activities alone and have no substantial basis other than or in addition to its petitioning activities.’ Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002), citing Duracraft, 427 Mass. at 167–168. At this stage of the inquiry, ‘the motive behind the petitioning activity is irrelevant,’ and ‘[t]he focus solely is on the conduct complained of.’ Office One, supra, citing Fabre v. Walton, 436 Mass. 517, 523–524 (2002).” Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 572 (2017). Moreover, where the nonmoving party “possessed an independent basis for its complaint,” an anti-SLAPP motion fails at the threshold step even if “petitioning activities may have served as the genesis for the plaintiff's decision to file suit.” Brice Estates, Inc. v. Smith, 76 Mass. App. Ct. 394, 396 (2010). See Duracraft, supra at 167 (“we adopt a construction of ‘based on’ that would exclude motions brought against meritorious claims with a substantial basis other than or in addition to the petitioning activities implicated”).

Himes did not met her initial first-stage burden. The underlying summary process action is based on Diplomat's claim of superior right to possession, and its claim for use and occupancy damages. See G. L. c. 239, § 1. The claims in no way rest on Himes's petitioning activities in prior litigation.

Although not necessary given Himes's failure to meet her burden at the initial prong, we note that Himes's motion fails at the second prong as well. The stipulation of dismissal in the first summary process action provided only that Diplomat would litigate its claims in the pending Middlesex action. The stipulation did not otherwise constrain Diplomat's right to pursue its summary process claim. Accordingly, once the Middlesex action was dismissed, the stipulation placed no restriction on Diplomat with respect to where or when it could file a summary process complaint. Moreover, Diplomat had nothing to do with the dismissal of the Middlesex action, which instead was caused by the Lozanos failure to file proof of service. In addition, there is no evidence that Diplomat knew that the Lozanos had filed the Barnstable action when Diplomat filed the current summary process action. In these circumstances, Diplomat has amply shown that its claim was not “primarily brought to chill [Himes's] legitimate petitioning activities.” Blanchard, 477 Mass. at 160. Diplomat needed only to show “that its primary motivating goal in bringing its claim, viewed in its entirety, was not to interfere with and burden defendant[’s] ․ petition rights, but to seek” an appropriate remedy (quotation and citation omitted). Id.

Finally, Diplomat requests appellate fees pursuant to Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979), and G. L. c. 211A, § 15, arguing that this appeal is frivolous. A frivolous appeal is one where, in light of well settled law, “there can be no reasonable expectation of a reversal” (citation omitted). Oxford Global Resources, LLC v. Hernandez, 480 Mass. 462, 478 (2018). Although the special motion to dismiss as well as this appeal tread very close to the line of frivolity, we ultimately decline to award fees.

So much of the order entered on August 16, 2019, as denies the special motion to dismiss pursuant to G. L. c. 231, § 59H, is affirmed.

So ordered.



3.   Diplomat's claim to possession was based on a postforeclosure conveyance of title.

4.   The motion also sought dismissal under Mass. R. Civ. P. 12 (b) (9), as amended, 450 Mass. 1403 (2008), lack of standing and jurisdiction under G. L. c. 239, § 1, and sought sanctions. None of those matters are before us.

5.   Lozano vs. United Guar. Residential Ins. Co., Superior Ct., No. 1881-CV-03231. There had also been a series of earlier lawsuits between the defendants and various parties concerning the property.

6.   Diplomat Prop. Manager, LLC vs. Lozano, Worcester Hous. Ct., No. 18H85-SP-005530.

7.   Lozano vs. United Guar. Residential Ins. Co., Superior Ct., No. 1972-CV-00217.

8.   Given our disposition, we merely note -- but do not reach -- two additional arguments Diplomat makes in favor of affirming the order. First, Diplomat argues that the special motion to dismiss was untimely because it was not made within sixty days of service of the complaint. See G. L. c. 231, § 59H. Second, Diplomat argues, by analogy to Matter of the Discipline of an Attorney, 442 Mass. 660, 674 n.27 (2004), that the anti-SLAPP statute does not apply to summary process actions because they are not “civil claims” within the meaning of the statute. See Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 515 (2003) (summary process claims are “purely statutory” and can only be maintained in “instances specifically provided for in the statute.”)

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