Opinion
No. 15–P–992.
08-05-2016
Warren E. AGIN, trustee v. Theresa PLAMONDON & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, as trustee of the bankruptcy estate of David Garant, brought this malicious prosecution action against Theresa and William Plamondon and Albert Piva. Theresa Plamondon had made several complaints to police about alleged conduct toward her by Garant. The first resulted in issuance in the District Court of a harassment protection order against Garant, and a criminal charge against him for threatening to commit a crime. Garant did not appeal the entry of that order. Each subsequent alleged event about which Theresa Plamondon complained to the police resulted in a criminal charge against Garant for violation of the protection order. Piva and William Plamondon each made a statement to police corroborating one of the events alleged by Theresa Plamondon.
Garant was tried criminally for all the charges and was acquitted on all counts. The plaintiff subsequently brought the instant action alleging malicious prosecution, defamation, intentional infliction of emotional distress, and violation of the Massachusetts Civil Rights Act. The defendants filed a special motion to dismiss under G.L. c. 231, § 59H, the anti-SLAPP statute, which was allowed by a Superior Court judge. As per the statute, attorney's fees were awarded. The plaintiff now appeals.
The complaint also alleged claims against the town of Westport and several of its police officers. Those claims were dismissed and are not the subject of the present appeal.
With respect to the requirements of the statute, it is clear that the special motion to dismiss was properly allowed. Even when the only evidence in support of a factual claim underpinning petitioning activity is the affidavit of the defendant, the Supreme Judicial Court has held that, notwithstanding his own affidavit to the contrary, a plaintiff will be unable to meet his burden of demonstrating that the petitioning activity had no reasonable basis in fact, which is the avenue that the plaintiff here sought to use to defeat the special motion to dismiss. See Benoit v. Frederickson, 454 Mass. 148, 154 n. 7 (2009) ; Fabre v. Walton, 436 Mass. 517, 524 (2002) (“Having established that Fabre's complaint is ‘based on’ Walton's petitioning activity, the burden shifts to Fabre to demonstrate by a preponderance of the evidence that Walton's petitioning activity was devoid of any reasonable factual support or any arguable basis in law”).
The plaintiff argues that the anti-SLAPP statute is void for vagueness and violates his rights to petition for redress of grievances, to due process of law, and to a jury trial. The plaintiff did not notify the Attorney General of his challenge to the constitutionality of the statute when he raised these arguments below. See Mass.R.Civ.P. 24(d), 365 Mass. 769 (1974). In fact, he only sent the notification after the defendants filed their appellate briefs, pointing out his failure to do so. We assume without deciding that we can reach the merits of the plaintiff's argument notwithstanding his failure to notify the Attorney General. Cf. Moakley v. Eastwick, 423 Mass. 52, 53 n. 2 (1996).
As interpreted under the Benoit standard, the statute is clear enough to survive the plaintiff's vagueness challenge. Chief of Police of Worcester v. Holden, 470 Mass. 845, 854 (2015) (“A law is void for vagueness if persons of common intelligence must necessarily guess at its meaning and differ as to its application ... or if it subjects people to an unascertainable standard” [citations and quotations omitted] ). As for the other claims—we focus particularly on the right to petition, as the plaintiff does not allege that the analysis differs under the other constitutional provisions he cites—the plaintiff argues that this case presents the constitutional issue that Justice Cordy referred to in a concurring opinion in Benoit, supra at 156–157. That concurring opinion can be read to suggest that if the Benoit standard were applied in a case where the only evidence on each side was an affidavit, there might be a constitutional problem if the court itself did not make sufficient credibility determinations to support its conclusion that the plaintiff had not met his burden of demonstrating an absence of reasonable factual support for the defendant's petitioning activity.
At least the initial incident of August 26, 2012, in which Garant allegedly drove by the Plamondons' residence and threatened to kill Theresa Plamondon, formed part of the basis for the issuance the next day of an ex parte harassment order by the District court. After hearing from both Theresa Plamondon and Garant, the District Court judge necessarily found by a preponderance of the evidence that the incident had occurred. Thus, even were we to recognize the constitutional claim suggested by Justice Cordy, his concurring opinion makes clear that in such circumstances the Superior Court judge's ruling that the plaintiff failed to demonstrate an absence of reasonable factual support for the petitioning activity is not constitutionally problematic.
All but one of the subsequent alleged incidents about which the defendants made complaint to the police occurred before the protective order was extended for an additional year. We think this suffices to demonstrate that the District Court judge found credible at least some of Theresa Plamondon's allegations. Such an assessment of credibility cures any putative constitutional concern, under the theory advanced by Justice Cordy in Benoit, that the Superior Court judge's ruling that the plaintiff failed to demonstrate an absence of any reasonable factual support for the petitioning activity rested on an inadequate assessment of the parties' credibility.
David Garant's decision not to appear at the extension hearing does not affect this analysis.
In addition, two of the incidents, including the February 10, 2013, incident (the only one reported by defendant Piva) were corroborated, at least to some extent, by surveillance video. With respect to the October 24, 2012, incident, surveillance video showed a silver automobile driving past the Plamondons' house, and Garant admitted he was driving a silver automobile on that day. Likewise, with respect to the February 10, 2013, incident in which Theresa Plamondon reported to the police that Piva had observed Garant drive by the Plamondons' house in violation of the protective order, there was surveillance video corroborating that a vehicle resembling the plaintiff's drove past the house at the reported time. We think this corroborative evidence suffices to prevent the plaintiff from demonstrating an absence of reasonable factual support for the petitioning activity involved.
But we would affirm the judgment below even if were we to accept the plaintiff's assertion that it runs afoul of the theory propounded by Justice Cordy in his concurrence in Benoit. In light of the Supreme Judicial Court cases holding that the anti-SLAPP statute is constitutional as so far interpreted, we would leave it to the Supreme Judicial Court to determine whether there is merit to the plaintiff's novel constitutional claim. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167 (1998) (interpreting the anti-SLAPP statute only to permit the dismissal of claims that have no substantial basis other than petitioning activities and holding that this interpretation does not unconstitutionally impinge on the plaintiff's right to petition); McLarnon v. Jokisch, 431 Mass. 343, 345–346 & n. 5 (2000) (holding that its interpretation does not abolish the tort of malicious prosecution, and that the defendant had not shown violation of due process); Baker v. Parsons, 434 Mass. 543, 550 (2001) (stating that the Duracraft interpretation of the anti-SLAPP statute “safeguard[s] the rights of all parties”); Cadle Co. v. Schlichtmann, 448 Mass. 242, 249 (2007) (noting that the Duracraft interpretation addressed the claim that the anti-SLAPP statute “impinges” on plaintiff's right to petition). See also Keystone Freight Corp. v. Bartlett Consol. Inc., 77 Mass.App.Ct. 304, 312 (2010), quoting from Duracraft, supra at 167 (“The Supreme Judicial Court has applied a constitutional construction to § 59H in a manner that will not ‘alter[ ] procedural and substantive law in a sweeping way’ ”). This approach seems particularly appropriate given that the Benoit majority, although aware of the constitutional issue raised in the concurrence, interpreted the statute to require dismissal whenever a defendant files an affidavit repeating her petition, even when no judge has ever found that petition to be true. Benoit, supra at 154 n. 7.
In view of our conclusion that the special motion to dismiss was properly allowed, it follows that there was no error in the award of attorney's fees. We note that the award is against the plaintiff in his representative capacity and, as a matter of State law, he is not liable personally for it; rather, the liability is imposed upon the bankruptcy estate of which he is the trustee and representative. Beyond that, we leave to the bankruptcy court any determination about the propriety and treatment of the award as a matter of Federal bankruptcy law.
Judgment affirmed.