Opinion
09-P-2090
09-28-2011
JOHN W. BAKER & another v. BONNIE HOBSON & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal involves a dispute over the parties' property rights in various lots they own on Clarks Island in Plymouth. The plaintiffs, John and Susan Baker (Bakers), filed a complaint on October 17, 2001, seeking to abate and enjoin alleged acts of trespass by the defendants. The defendants asserted a counterclaim, alleging abuse of process by the Bakers in filing their action, and seeking a declaratory judgment concerning their property rights. The Bakers filed a special motion to dismiss under G. L. c. 231, § 59H, on March 14, 2002. After a hearing, a judge of the Superior Court allowed the motion as to Bonnie and John Hobson, but denied it as to Virginia Hutton.
The Bakers sought interlocutory review in the Appeals Court and the defendants cross appealed. Following the decision in Baker v. Hobson, 62 Mass. App. Ct. 659 (2004), dismissing the appeals, the defendants amended their counterclaims to add counts of trespass, nuisance, and illegal tree cutting, and a trial was held in January, 2009. The jury answered special questions and remaining issues were tried to the trial judge. Final judgment entered on June 18, 2009. The Bakers' motions for directed verdict and for judgment notwithstanding the verdict were denied without comment. This appeal followed.
The trial judge was not the motion judge.
The defendants filed a notice of cross appeal but have not paid a docket fee in connection therewith, and thus their appeal is not before us. See generally Mass.R.A.P. 10(a), as amended, 430 Mass. 1605 (1999).
Discussion. 1. The special motion. Following the familiar analysis of a G. L. c. 213, § 59H, motion, Office One, Inc. v. Lopez, 437 Mass. 113, 122-123 (2002), the motion judge found that the only conduct complained of by the defendants in their counterclaims was the litigiousness of the Bakers, and she concluded that the Bakers' complaint concerned protected petitioning activity. Accordingly, the burden shifted to the defendants to demonstrate that the Bakers' right to petition was devoid of any reasonable factual support or any arguable basis in law. The judge stated that the defendants conceded they could not meet that burden with regard to John and Bonnie Hobson. However, the judge found that the allegations against Hutton were on a different footing, and that there was no competent evidence to show that Hutton was the woman who allegedly interfered with the Bakers' use of their property, and therefore she should not have been joined as a defendant. The motion judge also concluded that Hutton demonstrated she was caused actual injury by incurring the expense of defending against the Bakers' lawsuit. Although the Bakers moved for attorney's fees under G. L. c. 231, § 59H, the judge ruled that they did not prevail against all three defendants, and denied their request because it did not differentiate among the defendants.
The Bakers dispute the judge's conclusion that there was no competent evidence to show that Hutton interfered with the use of their property. This conclusion was based on the judge's determination that affidavits submitted by the Bakers purporting to show that Hutton interfered with their employees' use of a pathway were not based on personal knowledge, and credited an affidavit of Hutton's daughter, defendant Bonnie Hobson, that Hutton was physically incapable of walking on the pathway. No abuse of the judge's discretion in assessing the credibility of the affidavits has been shown. Accordingly, we conclude the judge neither abused her discretion nor committed an error of law in allowing the Bakers' special motion as to Bonnie and John Hobson, or in denying the motion as to Virginia Hutton.
We have considered the defendants' argument that the motion judge erred in finding that the abuse of process counterclaim was based solely on petitioning activity, but we conclude that they have failed to undermine the judge's conclusion that the only actions complained of in count I of their counterclaim is the Bakers' petitioning activity.
2. The interlocutory appeal. The Bakers sought interlocutory review in an appeal to this court and the defendants cross appealed. In a decision released on December 10, 2004, the court held that an interlocutory review could not be considered because any decision in favor of the Bakers on the counterclaim for abuse of process would not resolve the counterclaim for declaratory relief, and the court dismissed the appeals. Baker v. Hobson, 62 Mass. App. Ct. at 663.
The Bakers engage in an argument to the effect that the dismissal of their appeal implicitly suggested that during the subsequent trial in the Superior Court, the dismissal of their special motion could be reviewed in the light of evidence adduced at trial. We reject this argument because no reasonable view of Baker v. Hobson, supra, nor any other case of which we are aware, permits revisiting a ruling on a special motion during a subsequent trial. To permit such later review would be contrary to the purpose of G. L. c. 231, § 59H, which is to resolve litigation speedily and at minimum cost. Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998). The Bakers' motion for reconsideration of the denial of the special motion based on evidence adduced at trial, and their motion for judgment notwithstanding the verdict, properly were denied.
3. The posttrial motions. The Bakers raise several issues which appear to have been raised in motions for a directed verdict and for judgment notwithstanding the verdict, but are now argued without reference to memoranda that may have been submitted with the motions, and are accompanied only with minimal references to the trial record and relevant authority.
(a) There is no merit in the Bakers' assertion that Hutton failed to offer admissible evidence of damages, their dispute over the testimony of Bonnie Hobson, and the assertion that their action against Hutton was not filed with the intent to cause her to expend time and money to defend their claims. These assertions do not undermine the jury's findings that the filing of the lawsuit caused Hutton damages, and that $30,000 would compensate her for the emotional distress she suffered.
(b) The Bakers moved on June 22, 2009, to dismiss Hutton's counterclaim, asserting that any claim of Hutton was extinguished by her death on April 18, 2009, while the trial was ongoing. The trial judge denied the motion, concluding that the jury's February 5, 2009, verdict on Hutton's counterclaim was binding and conclusive and subject to an entry of judgment on that date, although the 6 did not enter judgment on that date 'due to unrelated issues to be addressed by the court after the jury's verdict,' which delayed entry of judgment to June 18, 2009. The judge did not err in concluding that the jury returned a verdict on Hutton's abuse of process claim before her death, and therefore it was unnecessary to determine whether the claim survived her death.
Bonnie Hobson was appointed guardian ad litem for Hutton on January 29, 2009, due to the progression of Hutton's Alzheimer's disease, and Hobson was substituted as a party in the trial which began on January 27, and continued to February 5, 2009.
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(c) The Bakers return to the motion judge's denial of attorney's fees at the time she allowed their special motion. The judge's denial was based on the failure of their request to differentiate among the three defendants. In this court's decision on the interlocutory appeal, we noted that the Bakers' request for attorney's fees related to the allowance of their § 59H motion could be taken up after entry of a final judgment. Baker v. Hobson, 62 Mass. App. Ct. at 663-664. In raising the issue in the present appeal, the Bakers do not indicate that they sought to pursue their request in the Superior Court after entry of final judgment, and only ask that they be awarded their reasonable costs and fees. The request is improperly directed to an appellate court and we reject it.
(d) The Bakers broadly argue that at trial they raised affirmative defenses of the Statute of Frauds and the statute of limitations on each counterclaim of nuisance, trespass, and illegal tree cutting, and raise several challenges specific to those counterclaims. They assert that those counterclaims could not be sustained because Bonnie Hobson did not timely have title to the property in issue, and the defendants were barred by the Statute of Frauds from pursuing an action for damages. We think the Statute of Frauds had no application here. No writings such as a deed or assignment of rights were required in the circumstances of this case because Bonnie Hobson was in actual possession of the property. Compare New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943). The Bakers assert that because the alleged cutting of trees began in 1986 and the defendants filed their counterclaims in 2002, their action should have been limited by enforcing the statute of limitations. The judge denied a request for such an instruction. Because it appears that the defendants sought restoration costs for the lost trees as a remedy, see Ritter v. Bergmann, 72 Mass. App. Ct. 296, 304, 307 (2008), rather than compensation for the value of the cut timber, the statute of limitations has no application. Also, the jury could consider evidence of a reasonable approximation of the restoration costs. Compare Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 609 (2007).
(e) The Bakers complain that the judge erred in describing their easement by prescription by identifying it 'as it existed on February 2, 2009.' They assert that such description may result in further disputes and litigation, and request that the judgment be amended to describe the easement set forth in a survey plan identified as exhibit 13 at trial. Although the exhibit appears in our record, this request should have been made to the trial judge.
Judgment entered June 18, 2009, affirmed.
Order entered June 30, 2009, affirmed.
By the Court (Cypher, Sikora & Hanlon, JJ.), Clerk