Opinion
19-P-795
04-03-2020
BOSTON CLEAR WATER COMPANY LLC v. Willis O'BRIEN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment allowing the defendants' special motion to dismiss pursuant to G. L. c. 231, § 59H (anti-SLAPP statute), and also allowing the defendants' motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for failure to state a claim. In addition, the plaintiff appeals from a judgment awarding attorney's fees. We affirm.
Because final judgment entered as a result of the rule 12 (b) (6) dismissal, this is not an interlocutory appeal of the sort that is allowed under the doctrine of present execution with respect to a dismissal pursuant to the anti-SLAPP statute. See Patel v. Martin, 481 Mass. 29, 33 (2018).
Pocahontas Spring had operated as a small commercial spring water business in Lynnfield (town) since about 1901, apparently without conflict with its neighbors in what eventually became a residential district. In 2014, the plaintiff, Boston Clear Water Company LLC (Clear Water), purchased the operation and aimed to expand the business. Neighborhood reaction to this development was not positive. Clear Water alleges that the neighbors engaged in a coordinated and concerted effort to block Clear Water's expansion plans. Those efforts form the bases for Clear Water's claims of intentional interference with advantageous relations, defamation, and civil conspiracy.
Pocahontas Spring's commercial activity began before Lynnfield adopted zoning bylaws. Eventually, the area in which the operation was located became a residential zone. Although not clear from the record or the briefing, we surmise that Pocahontas Spring's operations would not be permitted under current zoning but that they are grandfathered.
The original complaint alleged the following conduct and statements:
• "Some or all" of the defendants falsely stated that the Pocahontas Spring operation closed in 2012 knowing that it, in fact, had remained in operation. The complaint is silent as to whom these statements were made, when, or in what context.
• "At least three" of the defendants, including Bliss and the Sieverses, "complained" that Clear Water had offered to buy their homes. The complaint does not state that these complaints were false, nor does it allege to whom the statements were made or that they caused any economic harm.
• The "individual defendants" have alleged that " ‘secret meetings’ of unsavory individuals were being held on the second floor of the [Clear Water] building," when in fact the second floor was empty space that could not house meetings.
• The defendants "complained" about lawful activities on Clear Water's property, including gatherings of native Americans. The complaint is silent as to whom these statements were made, when, or in what context.
• The defendants have spread unspecified false information concerning separate land court litigation, including discussing the litigation at a meeting of the defendant Green Belt Corporation (Green Belt).
• The defendants have made unspecified false statements concerning Clear Water's "willingness to resolve any issues arising from its business operations." The complaint is silent as to whom these statements were made, when, or in what context.
• The defendants have made unspecified false statements alleging "intimidation" by representatives of Clear Water. Again, the complaint is silent as to whom these statements were made, when, or in what context.
• Defendants Willis O'Brien, John Sievers (Mr. Sievers), Mary B. Bliss, and Andrew J. Gallucci exchanged emails concerning activities at the Clear Water site and attempted to organize opposition to it. The complaint alleges that these emails were devoid of any reasonable factual basis, instead reflecting bias and speculation.
• "One or more" of the defendants falsely accused Clear Water of hosting a boisterous party. The complaint is silent as to whom these statements were made, when, or in what context.
• On April 22, 2016, Bliss falsely stated that Anthony Gattineri, Clear Water's principal, had "stalked her at her pool." The complaint is silent as to whom these statements were made, when, or in what context. There is also no allegation that the statement resulted in any harm.
• On June 13, 2017, Gallucci took pictures of a Clear Water customer and aggressively told the customer that he was blocking Gallucci's mailbox. There is no allegation that the customer was deterred from buying water or otherwise doing business with Clear Water.
• On September 11, 2017, Mr. Sievers made unspecified false statements and encouraged others to interfere with Clear Water's operations by writing that "our beautiful neighborhood can only remain the same with your support." There is no allegation any customer was deterred from buying water or otherwise doing business with Clear Water as a result of this statement.
• On September 12, 2017, former defendant Tracy Miller Geary falsely stated that Clear Water was "not the type of business people we are accustomed to in our town" and that Clear Water was "fighting to wreck a neighborhood, taking people[']s property." The complaint does not allege to whom, or the context in which, these statements were made, or any harm resulting from them.
• On November 1, 2017, Mr. Sievers and defendant Heather Sievers placed a "no trespassing" sign on a utility pole that did not belong to them in an attempt to interfere with Clear Water's business operations. The complaint does not allege that the posting of this sign did in fact interfere with Clear Water's operations or caused any harm.
In the absence of such allegations, Clear Water has failed to state a defamation claim with respect to any particular defendant. See Flagg v. AliMed, Inc., 466 Mass. 23, 37-38 (2013).
Absent an allegation of falsity, a claim of defamation does not lie. See Flagg, 466 Mass. at 37 (elements of defamation).
The affidavit of Anthony Gattineri, the principal of Clear Water, attributed this statement to defendant John W. Farrell, but provided no further detail.
See notes 4 and 5, supra.
This allegation does not provide notice pleading to any particular defendant as to what he, she, or it is alleged to have said or to whom. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). See also Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 191 (2017).
See note 8, supra.
See note 8, supra.
The defendants assert, and Gattineri confirms, that Gattineri obtained these emails, which had been sent to town officials (among others), through a Freedom of Information Act request.
See notes 4 and 8, supra.
See note 8, supra.
In addition to the pleading deficiencies noted in note 8, supra, the alleged statement is nonactionable opinion based on disclosed facts. See Driscoll v. Board of Trustees of Milton Academy, 70 Mass. App. Ct. 285, 297-298 (2007).
See note 14, supra.
As we have noted above, the defendants responded to the complaint with both a special motion to dismiss under the anti-SLAPP statute, and a rule 12 (b) (6) motion to dismiss. In connection with the former, each individual defendant submitted an affidavit that could be considered by the judge. See G. L. c. 231, § 59H ("the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based"). Those affidavits in general stated that the defendants' statements were based on their own personal observation or knowledge, were true, and were all made in connection with petitioning activity to local government or authorities, including the town's board of selectmen, conservation commission, and zoning board of appeals. In addition, although the complaint fell short of adequate notice pleading in the sense that it often did not identify what any particular defendant did or said, see Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 191 (2017), the individual defendants themselves identified the statements for which they were responsible and the context in which they were made -- and, in doing so, placed each of the alleged statements into the context of petitioning activity. The defendants also submitted an affidavit from a member of the family that previously operated Pocahontas Spring, stating that those operations ceased in 2012.
This assertion was also supported by a newspaper article containing the 2012 date.
In opposition to the defendants' motions, Clear Water submitted an affidavit from Gattineri that largely duplicated the allegations of the complaint. It also submitted affidavits from two customers; one alleged that he had been photographed by Gallucci, the second alleged that when she rang Gallucci's doorbell to tell him about the benefits of drinking the spring's water, she was met with hostility and rudeness. Neither customer alleged that he or she had been deterred from doing business with Clear Water as a result of the encounters.
At the hearing on the motions, the judge raised questions about the conclusory nature of many of the allegations, and the complaint's lack of specificity as to who was alleged to have done or said what. In response, Clear Water's counsel referred to additional statements regarding "mob" affiliation that were not alleged in the complaint. The judge allowed Clear Water to amend its complaint, encouraging it to provide specificity. As a result, Clear Water filed an amended complaint that added the following allegations:
• The defendants have falsely stated that Clear Water is planning to build a large scale bottling facility at the site. No particular defendant is identified in the amended complaint as having made this statement, nor is any information alleged concerning where, when, or to whom the statement was made.
• The defendants falsely stated that Clear Water is "Mob owned." The amended complaint does not state to whom, or the context in which, these statements were made.
• As a result of the "false and defamatory statements made by one or more of the defendants," Clear Water lost the opportunity to purchase a separate spring located in Plympton since the seller of that spring did not want to get involved with "those idiots up in Lynnfield." There is no allegation that any of the defendants knew of the alleged business opportunity.
See notes 4 and 8, supra.
See notes 4 and 8, supra.
In addition to failing to provide notice as to which defendant said what, absent an allegation that any defendant knew of the supposed advantageous business opportunity, the amended complaint does not state a claim for interference with such opportunity. The elements of tortious interference require proof of "a business relationship from which the plaintiff might benefit existed; the defendant knew of the relationship; the defendant intentionally interfered with the relationship for an improper purpose or by improper means; and the plaintiff was damaged by that interference. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812, 815–817 (1990) ; Swanset Dev. Corp. v. City of Taunton, 423 Mass. 390, 397 (1996)." Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App. Ct. 34, 38 (2004).
Having addressed in the footnotes above the reasons for which we agree with the judge that major portions of the amended and original complaints fail to state a claim, we turn to the defendants' special motion to dismiss pursuant to G. L. c. 231, § 59H. We review a judge's ruling on a special motion to dismiss pursuant to the anti-SLAPP statute for abuse of discretion or error of law. Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 203 (2019) (Blanchard II ). Here, the judge correctly engaged in the sequential application of the Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 159 (1998), framework as augmented by Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 159-161 (2017) (Blanchard I ). See 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 515-516, 518-519 (2019). More specifically, the judge considered the pleadings, and supporting and opposing affidavits to determine whether the party having the burden of proof at each stage of the framework satisfied it. At the threshold stage, the defendants (as the moving parties) had the burden to establish by a preponderance of the evidence that the claims against them were based on "petitioning activities alone and ha[d] no substantial basis other than or in addition to the petitioning activities." Duracraft, Corp., supra at 167-168. See Blanchard II, supra.
To the extent no underlying tort liability lies, the conspiracy claim necessarily fails as well. See Bartle v. Berry, 80 Mass. App. Ct. 372, 383–384 (2011).
Here, we see no error in the judge's conclusion that the defamation claim was based solely on petitioning activity. Not only were the complaint and amended complaint vague as to the context in which any of the alleged defamatory statements were made, Gattineri's affidavit shed no light on the matter. By contrast, the individual defendants' affidavits provided context and documentary support to show that all of the statements were protected petitioning. "In determining whether statements constitute petitioning, we consider them in the over-all context in which they are made. To fall under the ‘in connection with’ definition of petitioning under the anti-SLAPP statute, a communication must be made to influence, inform, or at the very least, reach governmental bodies –– either directly or indirectly. The key requirement of this definition of petitioning is the establishment of a plausible nexus between the statement and the governmental proceeding" (quotations and citations omitted). Blanchard I, 477 Mass. at 149. That nexus was established here by the defendants' affidavits detailing that the statements were made either to local governmental bodies or individuals, or in connection with organizing to participate in petitioning those entities and persons. No aspect of the defamation claim against any of the defendants rests on nonpetitioning.
Clear Water's tortious interference claims against all defendants except for Gallucci and the Sieverses are exclusively based on the same petitioning activity as the defamation claim.
As to Gallucci, there is an additional allegation that he took photographs of a Clear Water customer and aggressively confronted him. Gallucci does not dispute taking the photographs; he does, however, aver that he took them with the purpose of using them in connection with his petitioning activity. Motivation, though, is irrelevant at stage one of the Duracraft framework. See Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002). See also 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 170-171 (2017). Moreover, there is nothing in the record to show or suggest that the photographs were actually used in connection with any petitioning. Thus, the tortious interference claim against Gallucci cannot be said to rest solely on petitioning activity. That said, in the absence of any allegation that this encounter interfered in any way with an advantageous business relationship, the judge properly dismissed the claim for failure to state a claim. See note 18, supra. For similar reasons, although the Sieverses' posting of a "no trespass" sign on a utility pole was not petitioning activity, it was insufficient as pleaded to support a claim for tortious interference.
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The defendants having met their threshold burden at stage one of the Duracraft framework, the burden then shifted to Clear Water to establish by a preponderance of the evidence either that "(1) the [defendants'] exercise of [their] right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the [defendants'] acts caused actual injury to [Clear Water]," or that "[1] [Clear Water's] suit was ‘colorable’; and [2] that the suit was not ‘brought primarily to chill’ the [defendants'] legitimate exercise of [their] right to petition." Blanchard II, 483 Mass. at 204. This second alternative requires the nonmovant (i.e., Clear Water) to put forward sufficient evidence to permit the judge to reach a conclusion with "fair assurance." Id. at 204-205. "The judge's task with regard to the second path is to assess the ‘totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim,’ and to determine whether the nonmoving party's claim constitutes a SLAPP suit." Id. at 205, quoting Blanchard I, 477 Mass. at 159, 160.
We see no abuse of discretion or error in the judge's conclusion that Clear Water did not meet its burden under either prong of the second stage. Among other things, the judge could take into account the conclusory nature of Clear Water's allegations, and the fact that they were often devoid of context or detail even after the judge gave Clear Water an opportunity to amend its complaint. The judge could also consider the detailed nature of the defendants' affidavits, the documentary support for them, the relationships among the parties, the existence of various governmental proceedings concerning Clear Water's plans for the site, and the parties' participation and interest in them.
For these reasons, we affirm the judge's ruling on the special motion to dismiss under G. L. c. 231, § 59H, as well as his ruling on the rule 12 (b) (6) motion to dismiss.
Finally, although Clear Water acknowledges that the anti-SLAPP statute mandates an award of fees to successful movants, see MacDonald v. Paton, 57 Mass. App. Ct. 290, 296 (2003) ("[a] court has no discretion whether to grant costs and reasonable attorney's fees; under the statute the grant of both is mandatory"), it argues that the judge abused his discretion here with respect to the amount of fees awarded. Specifically, Clear Water argues that the judge "rubber stamped" the defendants' fee request, which was not limited to time spent on the anti-SLAPP motion. We are not persuaded, if only because Clear Water completely ignores the judge's solicitation of further explanation of the fee request, his receipt of additional information in response to that request, and his explanation and rationale as to why he was satisfied by the reasonableness of the fee request. In these circumstances, Clear Water has failed to show that the judge abused his discretion in allowing the fees requested. See Polay v. McMahon, 468 Mass. 379, 388 (2014) (judge has discretion as to amount of fees awarded under G. L. c. 231, § 59H ).
In light of our disposition, the defendants are also entitled to an award of their reasonable fees and costs on appeal. See McLarnon v. Jokisch, 431 Mass. 343, 349–350 (2000). In accordance with the procedure set out in Fabre v. Walton, 436 Mass. 517, 525 (2002), the defendants are to file a detailed fee application within two weeks of the issuance of this decision. The plaintiff shall file its response, if any, within two weeks thereafter.
Judgments affirmed.