Opinion
No. 11–P–2054.
2013-01-25
Allan J. GOLDSTEIN v. HOWARD LEE SCHIFF, P.C.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Allan J. Goldstein commenced this action, seeking $235,423 in damages in connection with the conduct and statements of Howard Lee Schiff, P.C. (the firm), in a prior abbreviated collection action. After a hearing at which Goldstein did not appear, a judge of the Superior Court granted the firm's special motion to dismiss under G.L.c. 231, § 59H, known as the anti-SLAPP statute. Finding no abuse of discretion or error of law, we affirm the resulting judgment of dismissal. See Office One, Inc. v. Lopez, 437 Mass. 113, 121 (2002). As the special movant, the firm was required to make a threshold showing, through the pleadings and affidavits, that Goldstein's claims 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), quoting from G.L.c. 231, § 59H, inserted by St.1994, c. 283, § 1. If that burden was satisfied, dismissal of the complaint was required unless Goldstein could show that “(1) [the firm's] exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) [the firm's] acts caused actual injury to [Goldstein].” G.L.c. 231, § 59H, as amended by St.1996, c. 450, § 245.
The firm represented Goldstein's opponent in that prior action, HSBC Bank Nevada, N.A. (bank), the holder of Goldstein's unpaid credit card debt. The District Court dismissed the collection action based upon the bank's noncompliance with Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401 (1988). Goldstein's complaint herein raised claims of violation of G.L.c. 93A; violation of 15 U.S.C. §§ 1692 et seq., the Fair Debt Collection Practices Act (FDCPA); and intentional infliction of emotional distress. Specific conduct complained of included the firm's lack of due diligence in failing to inform the Middlesex sheriff's office of his correct apartment number; serving him with an “illegal” summons after the case was dismissed; filing a frivolous motion to vacate the judgment of dismissal and to allow service late; including an incorrect date on its certificate of service on a document that was served on Goldstein but never filed in court; and making misrepresentations in a memorandum of law.
In evaluating the propriety of that ruling, we confine our review to the materials considered by the motion judge. See Demoulas Super Mkts., Inc. v. Ryan, 70 Mass.App.Ct. 259, 264 n .9 (2007). To the extent that Goldstein claims lack of notice of the hearing, he did not bring that matter up in the Superior Court or move for reconsideration of the judgment on that basis. We decline to consider any issues that were not raised in the trial court. See Amato v. District Attorney for Cape & Islands Dist., 80 Mass.App.Ct. 230, 237 n. 11 (2011).
We conclude here, as did the judge, that Goldstein's claims were based solely on petitioning activity as that concept is broadly defined in § 59H. See North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 861–862 (2009). Goldstein admitted that the filing of the collection action on behalf of the bank was protected petitioning activity. All of the firm's allegedly objectionable conduct occurred in the context of the prosecution of that litigation. See id. at 864–865;Demoulas Super Mkts., Inc. v. Ryan, 70 Mass.App.Ct. 259, 262–263 (2007). Compare Donovan v. Gardner, 50 Mass.App.Ct. 595, 596–599 (2000) (abutters' hiring of helicopter to fly over and take pictures of plaintiffs' farm, angry verbal exchanges, and agreement to fund the battle against the farm's expansion—taken in conjunction with appeals to State and local agencies—construed as protected petitioning activities). The fact that the suit had been dismissed at the time of the second service did not strip the activity of its protected status. Goldstein's conclusory assertions about the firm's false statements and “fraud upon the [c]ourt” could not defeat this initial showing by the firm. See Baker v. Parsons, 434 Mass. 543, 551 (2001).
Although the motion judge did not reach the second step of the § 59H analysis, the record permits only one conclusion: Goldstein's filings were inadequate to meet his burden with the requisite degree of proof. See Baker v. Parsons, 434 Mass. at 553–555;Adams v. Whitman, 62 Mass.App.Ct. 850, 858 (2005). The firm's lack of success on its postjudgment motion did not mean that the petitioning activity had no colorable basis. See Baker v. Parsons, 434 Mass. at 555 n. 20. Indeed, the District Court judge was unmoved by Goldstein's request to change the judgment to one with prejudice on account of the same illegal and fraudulent conduct alleged in this action.
As Goldstein admitted, the firm initially obtained a valid summons. In his affidavit in support of the special motion to dismiss, one of the firm's attorneys averred that at the time of the initial service attempt, the firm did not have Goldstein's apartment number; and that the firm did not receive the dismissal notice from the court before requesting that Goldstein be re-served. In contrast, Goldstein failed to support his opposition memorandum with an affidavit. His complaint was unverified and filled with conclusory and unsupported allegations regarding the firm's motives and state of mind. On the view we take, there is no need to consider the element of actual injury. See Baker v. Parsons, 434 Mass. at 552 n. 14.
We reject Goldstein's remaining arguments because they fall below acceptable appellate standards or are unpersuasive. See Donovan v. Gardner, 50 Mass.App.Ct. at 602.
The firm has not requested an award of appellate attorney's fees in its brief. See Fabre v. Walton, 441 Mass. 9, 10 (2004).
Judgment affirmed.