JAMES TISBERT v. SAMUEL AMEEN

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Appeals Court of Massachusetts.

JAMES TISBERT 1 v. SAMUEL AMEEN.

16-P-1336

Decided: July 11, 2017

By the Court (Vuono, Wolohojian & Lemire, JJ.5)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from a decision of the Appellate Division of the District Court, affirming the denial of his special motion to dismiss the defendant's counterclaim under G. L. c. 231, § 59H, the anti-SLAPP statute.2 Because we conclude that it was an error of law to deny the motion, we reverse. See Marabello v. Boston Bark Corp., 463 Mass. 394, 397 (2012) (decision on special motion to dismiss is reviewed for abuse of discretion or other error of law); Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 595 (2014).

In August, 2012, the plaintiff filed the underlying complaint, asserting breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment. In summary, the claims rested on the plaintiff's allegation that the defendant failed to pay for the transport of the defendant's car to Florida. The defendant answered, and asserted a counterclaim of abuse of process. The counterclaim, which was not verified, was based on the allegation that the complaint was “brought with malice and to accomplish unlawful and ulterior purposes,” namely to achieve leverage in a separate small claims case pending between the parties.3 In other words, the counterclaim was based entirely upon the plaintiff's act of filing the complaint.

General Laws c. 231, § 59H, establishes a mechanism to protect against so-called strategic lawsuits against public participation, or SLAPPs. There is a two-part test for determining whether a claim, counterclaim, or cross claim is encompassed by the statute and should be dismissed. First, “[t]he special movant who 'asserts' protection for its petitioning activities [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). Once the special movant has so demonstrated, the burden shifts to the nonmoving party, who can only defeat the special motion by showing that “(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party.” G. L. c. 231, § 59H, as amended by St. 1996, c. 450, § 245.

Here, it is clear that the counterclaim is based solely on the plaintiff's petitioning activity. Indeed, the counterclaim is “predicated solely on what is considered to be [the plaintiff's] ulterior motive in filing” his complaint. Keystone Freight Corp. v. Bartlett Consol., Inc., 77 Mass. App. Ct. 304, 316 (2010). Accordingly, the plaintiff met his burden under the first step of G. L. c. 231, § 59H, and the burden then shifted to the defendant to demonstrate “by a preponderance of the evidence, based on the pleadings and affidavits, that the petitioning activity is 'devoid of any reasonable factual support or any arguable basis in law.”' DePiero v. Burke, 70 Mass. App. Ct. 154, 158-159 (2007), quoting from Adams v. Whitman, 62 Mass. App. Ct. 850, 853 (2005). See Baker v. Parsons, 434 Mass. 543, 553-554 (2001).

The defendant submitted no evidence or affidavits bearing on this point;4 instead, he rested solely on the unverified allegations of his answer and counterclaim. This was not sufficient to meet his burden at this stage. The defendant “could not have met his burden through his filings,” Adams v. Whitman, supra at 858, especially where, as here, the “allegations were not submitted in a verified pleading or affidavit and are merely conclusory.” Ibid. See Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 489 (2017). For these reasons, it was an error of law to deny the plaintiff's special motion to dismiss.

One final point bears mention. It is true that the counterclaim was dismissed pursuant to rule 12(b)(6) for failure to state a claim, and the defendant has not cross-appealed. For two reasons, however, that ruling did not obviate the need to consider also the special motion to dismiss. First, the anti-SLAPP statute protects different interests (public in nature) than a motion based on the failure to state a claim. Second it carries additional relief in the form of mandatory attorney's fees, which are otherwise unavailable. See McLarnon v. Jokisch, 431 Mass. 343, 349-350 (2000).

Decision and order of the Appellate Division reversed.

FOOTNOTES

2.   This appeal reaches us by an unusual route. Customarily, the denial of a special motion to dismiss comes before us by way of an interlocutory appeal. In this case, however, the judge's margin notation allowing the plaintiff's motion easily led to the conclusion that he had allowed both the special motion to dismiss and the motion to dismiss for failure to state a claim. Not until after final judgment did the judge clarify that he intended only to allow the motion on the basis of grounds set forth in Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), not on the basis of the anti-SLAPP statute. The plaintiff appealed that ruling to the Appellate Division, where the appeal of the plaintiff's motion for reconsideration was already pending. Although the plaintiff arguably appealed incorrectly to the Appellate Division rather than directly to us, see Van Liew v. Stansfield, 474 Mass. 31, 32 (2016), we do not see that error as an impediment to this appeal.

3.   The parties' disagreement over whether the small claims case is related to this one is immaterial to our decision or analysis.

4.   The defendant's attorney submitted an affidavit in which he recounted certain procedural history of the case and stated his belief that there was a core set of common facts between the small claims case and this one. However, this did not meet the defendant's burden to demonstrate that the petitioning activity was “devoid of any reasonable factual support or any arguable basis in law.”