Opinion
20-P-364
03-14-2022
Joseph CHALIFOUX v. Jamie Mauritz JAMES & another (and two consolidated cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Joseph Chalifoux (Joseph), and defendant Jennifer Chalifoux (Jennifer) are former spouses who were involved in highly contentious divorce proceedings in the Probate and Family Court for several years. These consolidated appeals arise from civil complaints filed by Joseph in the Superior Court against Jennifer and the attorneys who represented her during the divorce proceedings: Jamie Mauritz James (Mauritz James), Mauritz James's law firm (the firm), and Mauritz James's former associate, Nicholas Halks, (collectively, attorney defendants). Joseph appeals from (1) an order allowing the defendants’ motions to dismiss, and requests for attorney's fees pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute; and (2) an order enjoining and restraining Joseph from filing further complaints against the defendants relating to the divorce litigation without obtaining leave of court (gatekeeper order). We affirm.
Because the plaintiff and his former spouse share the same last name, we shall refer to them by their first names to avoid confusion.
Docket nos. 1681CV01913, 1681CV02842, and 1681CV03564 were consolidated below. We consolidated the three appeals for briefing and decision here at the request of Joseph.
We treat this order as a final judgment because the order dismissed all counts in the complaints filed against Jennifer and the attorney defendants, Joseph timely appealed from it, and the defendants have not objected to our consideration of Joseph's claims concerning the order. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995).
Joseph also appeals from a summary judgment entered in favor of Jennifer and her father in docket no. 1681CV01913. However, this appeal is waived because Joseph failed to brief the summary judgment issue in any meaningful fashion. See Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 194 n.10 (2005). Notwithstanding the waiver, we discern no error in the entry of summary judgment. Joseph failed to respond to properly served requests for admission, which resulted in the subject matter of those requests being deemed admitted, see Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 395 Mass. 255, 259 (1985), thereby resolving all material disputed facts in the defendants’ favor and rendering summary judgment for the defendants appropriate. See Campana v. Directors of the Mass. Hous. Fin. Agency, 399 Mass. 492, 502-503 (1987).
Background. From 2011 to 2015, Jennifer and Joseph were embroiled in a divorce action that the Probate and Family Court judge (divorce judge) characterized as "the most ‘out of control’ litigation [he] had seen in his more than four-decade legal career." The divorce judge found, among other things, that Joseph was "extremely controlling and ... psychologically abusive" toward Jennifer, who was "the frequent recipient of troubling conduct on the part of [Joseph] both during the marriage and, in various forms, over the long span of [the divorce] litigation." The divorce judge ordered Joseph to pay Jennifer's attorney's fees in the amount of $3,500, because of his "obstructionist behavior" and "[b]ecause [his] ‘enunciated positions throughout the case ... were so strikingly lacking in credibility and merit.’ "
Following the "scorched earth" divorce litigation, as described by the divorce judge, Joseph went on to file a total of seven civil lawsuits in three different courts "relat[ing] to his relationship with and divorce from Jennifer." Joseph first filed a 101-page, thirty-three count complaint in the Federal District Court against various defendants (including Jennifer, her father, Mauritz James, and Halks), followed by a 166-page, thirty-four count complaint in the New Hampshire Superior Court against many of the same defendants. Both cases were dismissed, and the New Hampshire Superior Court judge awarded attorney's fees to Jennifer and her father in the amount of $16,770.85, because Joseph's claims "were ‘without any reasonable basis in the facts provable by evidence,’ ‘frivolous,’ and apparently ‘designed to retaliate against [Jennifer] and/or harass her.’ " Joseph thereafter filed several complaints in the Middlesex Superior Court, including those giving rise to the present appeal.
The other complaints were dismissed and are not at issue in this appeal.
In October 2016, Joseph filed a six-count complaint against Jennifer and the attorney defendants (first complaint), claiming abuse of process, malicious prosecution, intentional and negligent infliction of emotional distress, conspiracy, and defamation. In that complaint, docketed as no. 1681CV02842, Joseph alleged that Jennifer and her attorneys "conspired" to "initiate a false prosecution against [him]" for perjury.
In December 2016, Joseph filed a twelve-count complaint against Mauritz James and the firm (second complaint), claiming assault and battery, interference with contractual or business relations, fraud, defamation, abuse of process, violations of the criminal offender record information statute, intentional infliction of emotional distress, and legal malpractice, among other claims. In the second complaint, docketed as no. 1681CV03564, Joseph alleged, among other things, that during the divorce litigation, the attorney defendants engaged in harassing and unethical conduct designed to prejudice him and cause him mental anguish, prevent the parties from settling, and improperly benefit Mauritz James and the firm. Joseph also alleged that Mauritz James committed assault and battery by "attempt[ing] to forcibly remove documents from [his] hand" while in court, causing him to suffer "scratches to his hand and wrist and emotional distress[,]" "folds and tears to his documents[,] and mental anguish."
Joseph mislabeled count XII as Count XI.
In January 2017, Jennifer and the attorney defendants filed special motions to dismiss pursuant to the anti-SLAPP statute, and motions to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). In October 2017, a judge consolidated the cases. On December 19, 2017, another judge issued a memorandum of decision and order that (1) allowed the defendants’ special motions to dismiss as to all but one of Joseph's claims (the assault and battery count in the second complaint), concluding that the claims were based solely on the defendants’ legitimate petitioning activity and thus subject to dismissal under the anti-SLAPP statute, G. L. c. 231, § 59H ; (2) awarded attorney's fees to the defendants pursuant to the anti-SLAPP statute; and (3) dismissed the assault and battery count pursuant to rule 12 (b) (6). This order resulted in the dismissal of the first and second complaints in their entirety. On the same date, the judge issued the gatekeeper order enjoining Joseph from "filing or causing to be filed any additional civil [c]omplaints in Middlesex Superior Court against any of the defendants named in these consolidated actions, pertaining to matters arising out of his divorce from Jennifer Chalifoux, without prior judicial approval." These appeals followed.
As noted supra, note 6, Joseph's appeal in the third civil action, docket no. 1681CV01913, is deemed waived. Joseph contends, without citing to any relevant legal authority, that the consolidation order was baseless. See Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996) (pro se litigant not excused from rules of appellate procedure); Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678, 683 n.8 (2020) (assertions not supported by legal authority are waived). Even if this argument had been properly briefed, we discern no abuse of discretion. See Qureshi v. Fiske Capital Mgt., Inc., 59 Mass. App. Ct. 463, 469 n.5 (2003). The judge who issued the order appropriately determined that "the interests of judicial and litigant economy, as well as the desirability [of] avoid[ing] inconsistent results, dictate that [the cases] be consolidated" because they "hav[e] a substantial overlap and identity of parties, issues and factual nexus." See Mass. R. Civ. P. 42 (a), as amended, 423 Mass. 1402 (1996).
We need not consider Joseph's claim of error in the dismissal of the assault and battery count because he has failed to address the judge's stated rationale: the firm did not exist during the events in question, and the claim against Mauritz James had "no reasonabl[e] likelihood of satisfying" the $25,000 minimum recovery amount required by G. L. c. 212, § 3 to maintain a civil action in the Superior Court. See Zizza v. Zizza, 456 Mass. 401, 406 (2010). Even if we did consider his claim, we would discern no error.
Discussion. Joseph principally maintains that it was error (1) to allow the defendants’ motions to dismiss the first and second complaints, and to award attorney's fees, pursuant to the anti-SLAPP statute; and (2) to issue the gatekeeper order. We address his arguments in turn.
Joseph did not appeal from the final orders dated March 12, 2018 and March 20, 2018 awarding attorney's fees to the defendants in the amounts of $2,665.75 and $2,497.92. The amount of those fees is thus not properly before us (nor challenged by Joseph). He challenges only the right to attorney's fees, which was established by the December 19, 2017 order and timely appealed by Joseph.
1. Anti-SLAPP special motions to dismiss. Joseph contends that the motion judge erred in granting the special motions to dismiss because the defendants failed to demonstrate that the complained-of conduct constituted legitimate petitioning activity under the anti-SLAPP statute. We disagree.
The anti-SLAPP statute "is designed to deter lawsuits filed to intimidate citizens from legitimately petitioning the government for redress of grievances and to provide a mechanism for the prompt dismissal of such lawsuits before the petitioning party has been forced to incur significant costs of defense." Plante v. Wylie, 63 Mass. App. Ct. 151, 156-157 (2005). It also protects attorneys "voicing the positions of a petitioning client." Id. at 157. The statute provides that a judge "shall" grant a special motion to dismiss
"[i]n any case in which ... the civil claims ... against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth ... unless the [nonmoving] party ... shows 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 [nonmoving] party." G. L. c. 231, § 59H.
To assess an anti-SLAPP special motion to dismiss, courts apply a two-prong, burden-shifting framework. See Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 147-148 (2017) (Blanchard I ); Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167–168 (1998). The first prong requires the defendants to "make a threshold showing through pleadings and affidavits that the claims against [them] are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities" (quotations and citations omitted). Blanchard I, supra at 147. See Duracraft Corp., supra. If the defendants make that threshold showing, the analysis proceeds to the second prong, under which the burden shifts to the plaintiff (Joseph) to establish, by a preponderance of the evidence, either (1) that the defendants were engaged in "sham" petitioning (i.e., petitioning activity "lack[ing] a reasonable basis in fact or law") that caused actual injury to Joseph; or (2) that "each challenged claim was not primarily brought to chill the [defendants’] legitimate petitioning activities." Blanchard I, supra at 159-160. We review the judge's ultimate ruling on a special motion to dismiss made pursuant to G. L. c. 231, § 59H, for "an abuse of discretion or error of law." Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 203 (2019) (Blanchard II ). See Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 572 & n.14 (2017) (de novo review for first prong; abuse of discretion for second prong).
a. First prong. The anti-SLAPP statute's broad definition of petitioning activity includes (1) "any written or oral statement made before or submitted to a ... judicial body, or any other governmental proceeding;" and (2) "any written or oral statement made in connection with an issue under consideration or review by a ... judicial body, or any other governmental proceeding." G. L. c. 231, § 59H. The "key inquiry here is whether ‘the only conduct complained of is ... petitioning activity.’ " 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 168 (2017) (Harrison I ), quoting Fabre v. Walton, 436 Mass. 517, 524 (2002) (Fabre I ).
Here, the motion judge concluded, and we agree (with one exception discussed infra ), that the defendants satisfied their threshold burden of showing that Joseph's claims against them were based on "petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities," Duracraft Corp., 427 Mass. at 167-168, because the "complained of conduct relate[d] to the defendants’ litigation of the exceedingly contentious divorce proceedings," including "the parties’ communications with and submissions to the Probate Court and discovery master, and communications with each other in connection with the divorce proceedings, discovery practice, and settlement negotiations." We address each complaint in turn.
i. First complaint. In the first complaint, filed against Jennifer and the attorney defendants, Joseph's central claim was one for abuse of process, alleging that the defendants conspired to "initiate a false prosecution against [him]" for perjury.
We begin with the proposition that "[c]ommencement of litigation is quintessential petitioning activity." 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 520 (2019) (Harrison II ). This creates tension in the context of an abuse of process claim because "an actionable abuse of process claim will always be, at least in part, based on a special movant's petitioning activities." Harrison I, 477 Mass. at 169. This does not mean, however, "that an abuse of process claim will always be solely based on a special movant's petitioning activities." Id. We must determine, then, "whether [Joseph] allege[d] that the defendants engaged in any conduct germane to [his] abuse of process claim, apart from [the defendants’] invocations of process, which can provide a ‘substantial basis’ for [Joseph's] claim." Id. "Subsequent misuse of process, as long as it is not also petitioning activity, may thus provide a nonpetitioning basis for [Joseph's] abuse of process claim." Id. See Adams v. Whitman, 62 Mass. App. Ct. 850, 855 (2005) ("at the first stage of the special motion analysis, the key to survival of a party's abuse of process claim seems to be whether the party relies on some other conduct by the special movant, apart from merely obtaining the process, that amounted to an affirmative, subsequent misuse of the process to further the special movant's alleged ulterior purpose").
Joseph's allegations revolve around a list (of job applications) that he was required to serve on Jennifer. After his service attempts were unsuccessful, he alleged, he provided hard copies to Jennifer and her attorneys while in court for a hearing, and so informed the judge. Jennifer and her attorneys denied receipt and applied for a criminal complaint in the District Court, charging Joseph with perjury for his statement to the judge. The criminal complaint application was dismissed at the criminal complaint hearing when Joseph proved, by showing the clerk magistrate a transcript of the hearing before the judge, that he had not been sworn when he made the statement about the list.
Joseph's abuse of process claim is based, at least in part, upon petitioning activity, i.e., the filing of the criminal complaint application in the District Court. Harrison II, 483 Mass. at 520. We ask, next, whether that claim is also based on conduct by the defendants (apart from their invocation of process) amounting to a subsequent misuse of process, and conclude that it is not. See Harrison I, 477 Mass. at 169 ; Adams, 62 Mass. App. Ct. at 854–855. The defendants’ unsuccessful attempt to bring a criminal complaint against Joseph is the sole basis for his complaint. There is no suggestion that the defendants subsequently misused the criminal complaint application to obtain an improper advantage outside of that proceeding. Thus, the Superior Court judge correctly determined that Joseph's complaint was based solely on the defendants’ petitioning activity. See Fabre I, 436 Mass. at 522-523 (where abuse of process claim was based on defendant's application for 209A order against plaintiff, and plaintiff's complaint "simply recount[ed] and complain[ed] of [defendant's] conduct in bringing and testifying at the 209A proceedings," defendant met burden under first prong).
The elements of abuse of process are that "(1) ‘process’ was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage" (citation omitted). Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 407 (2002). A claim will lie where process is used as "a form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property" (quotation and citation omitted). Powers v. Leno, 24 Mass. App. Ct. 381, 383-384 (1987).
Joseph vaguely alleged in his complaint that the defendants filed the criminal complaint "to gain an advantage in the probate matter." He did not, however, describe what advantage they allegedly sought, nor did he allege any steps taken by the defendants outside the criminal complaint proceeding demonstrating that they attempted to use it as leverage to settle the divorce (indeed, the divorce case never settled). Cf. American Velodur Metal, Inc. v. Schinabeck, 20 Mass. App. Ct. 460, 462, 469-470 (1985) (abuse of process adequately alleged where wife claimed that husband's corporation filed lawsuit for possession of house to coerce her into divorce settlement more favorable to him).
ii. Second complaint. The second complaint, filed against Mauritz James and the firm, was based on the following alleged activities by the attorney defendants: (1) their communications concerning settlement of the divorce action, including Mauritz James's request that Joseph agree to release all claims against the attorney defendants as part of the divorce settlement; (2) their alleged failure to file under seal an impounded guardian ad litem report (from a prior New Hampshire proceeding) in the Massachusetts divorce case, which Joseph claimed resulted in unauthorized disclosure of his private medical information and criminal record history; (3) their communications during discovery with the discovery master, Joseph's attorney, and Joseph's stenographer, which Joseph characterized as harassment; (4) their alleged harassment of Joseph and his then-girlfriend during the divorce litigation; (5) their allegedly false statements made to the court during the divorce litigation; and (6) their "aid[ing] and abet[ting]" Jennifer in violating the parenting schedule, by informing Joseph that Jennifer could not drop off the children while she was on vacation, and by representing Jennifer in the contempt action stemming from that incident.
This alleged harassment consisted of threatening to report the discovery master to the Board of Bar Overseers (BBO) in an attempt to secure more favorable discovery rulings; demanding that the stenographer show her phone at a deposition to determine whether Joseph had recently used it to engage in an ex parte communication with the discovery master; and threatening to report Joseph's attorney to the BBO for serving a subpoena on Jennifer's employer. Joseph claimed these actions caused the discovery master and the stenographer to withdraw.
Joseph alleged that Halks mocked him at a deposition, and that Mauritz James called him after normal business hours to "drill[ ] him with inappropriate questions," and sat at his table in the courthouse lobby making "criminal" threats. As for his girlfriend, Joseph alleged that the attorney defendants sent her an inappropriate deposition notice and subpoenaed her bank records without the prior approval of the discovery master, and "glar[ed]" at her while she was present at a settlement conference, which allegedly caused her to break up with Joseph.
These alleged statements included that Joseph had threatened the children's pediatrician, that Jennifer would suffer financial prejudice from additional litigation, that Joseph had not applied for jobs as required by a court order, and that Joseph had failed to send the firm certain discovery materials, resulting in their exclusion at trial.
With the exception of Mauritz James's request for a release of claims against the attorney defendants (which we address infra ), all the aforementioned activities fall squarely within the definition of petitioning activity, as they involve "written or oral statement[s] made before or submitted to a ... judicial body," or statements otherwise "made in connection with an issue under consideration or review by a ... judicial body," G. L. c. 231, § 59H, including statements made to individuals involved in the divorce litigation and communications regarding discovery practice and settlement of the divorce action between Joseph and Jennifer.
While petitioning activity under § 59H includes "statements made by one participant in a pending governmental proceeding to another in an effort to settle the controversy," Plante, 63 Mass. App. Ct. at 159, Mauritz James's request for a release of claims against the attorney defendants was for their benefit, and was therefore not "voicing the position[ ]" of her client, Jennifer. Id. at 157. Mauritz James requested the release after Joseph stated his intention to file suit against her and the other attorney defendants. Her request (as a potential defendant in an imminent lawsuit) was a prelitigation settlement offer, which falls outside the scope of petitioning activity protected by the anti-SLAPP statute because, "at the time she [made her offer of settlement], the issues in question were not ‘under consideration’ in any governmental proceeding." Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 243 (2008).
The defendants argue, in the alternative, that Mauritz James's prelitigation settlement offer was protected by the absolute litigation privilege. We agree. "[I]t is well-established that communications by a party preliminary to a proposed judicial proceeding ... are entitled to protection, provided that legal action was contemplated when the ... statements were made." Giuffrida, 73 Mass. App. Ct. at 242. "Whether an absolute privilege applies to such communications is determined on a case-by-case basis, after a fact-specific analysis." Id. Joseph alleged that he told Mauritz James that he intended to sue her because of the criminal complaint application that she had filed against him. Mauritz James subsequently asked him to settle the divorce case with Jennifer and asked that, as part of the settlement, he agree not to "pursue various criminal, civil and BBO claims" against Mauritz James and the firm. These facts "fully support the application of the privilege." Id. See Clair v. Clair, 464 Mass. 205, 214 (2013) (appellate court "may consider any ground apparent on the record that supports the result reached in the lower court" [citation omitted]).
The absolute litigation privilege "protects an attorney's statements made while ‘engaged in his function as an attorney,’ both during and prior to litigation" (citation omitted). Patriot Group, LLC v. Edmands, 96 Mass. App. Ct. 478, 484 (2019). All of Joseph's claims against the attorney defendants, apart from the assault and battery claim dismissed pursuant to rule 12 (b) (6), were predicated on actions or statements made by them while engaged in their representation of Jennifer during the divorce litigation. Accordingly, those activities were protected by the absolute litigation privilege, and dismissal of Joseph's complaints was proper, irrespective of the anti-SLAPP statute. We nevertheless continue with the anti-SLAPP analysis because the judge awarded fees under that statute.
Having concluded that Joseph's claims (other than those relating to Mauritz James's prelitigation settlement offer) were based solely on the defendants’ petitioning activity, we proceed to the second prong of the anti-SLAPP framework.
b. Second prong. Under the second prong, the burden shifts to Joseph to establish by a preponderance of the evidence that the defendants’ petitioning activity "lack[ed] a reasonable basis in fact or law," and that such activity caused actual injury to Joseph. Blanchard I, 477 Mass. at 159. At this stage, "[t]he critical determination is ... whether it contains any reasonable factual or legal merit at all." Wenger v. Aceto, 451 Mass. 1, 7 (2008). Joseph must show "that no reasonable person could conclude that there was [a basis in law]" for the petitioning activity. Baker v. Parsons, 434 Mass. 543, 555 n.20 (2001).
Alternatively, if he cannot make this showing, Joseph must demonstrate "that [his] primary motivating goal in bringing [his] claim, viewed in its entirety, was not to interfere with and burden defendants’ ... petition rights, but to seek damages for the personal harm" caused by their "[legally transgressive] acts" (quotation and citation omitted). Blanchard I, 477 Mass. at 160. Joseph "must make this [alternative] showing with respect to each such claim viewed as a whole" and "[i]n applying this standard, the motion judge, in the exercise of sound discretion, is to assess the totality of the circumstances pertinent to [Joseph's] asserted primary purpose in bringing [his] claim." Id.
Here, the judge determined that Joseph failed to make either showing under the second prong. The judge found that the defendants’ petitioning activity did not lack "any reasonable factual or legal merit," Wenger, 451 Mass. at 7, or "an objectively reasonable basis," Harrison I, 477 Mass. at 173, especially "when viewed in the context of the bitter divorce proceedings." The judge found that, "[g]iven the contentious nature of the [divorce] proceedings, and [Joseph's] defiant, uncooperative, and aggressive behavior" as described by the divorce judge, "the petitioning activities and litigation tactics attributed to the defendants in the complaints cannot be said to be baseless." The judge also found that Joseph failed to "establish[ ] that his present claims ‘were not primarily brought to chill [the defendants’] legitimate petitioning activities.’ " The judge noted that "[t]he lengthy history between the parties demonstrate[d] a pattern of Joseph using litigation to harass and exercise control over Jennifer and strongly support[ed] the conclusion that Joseph's primary motivating goal in bringing [the complaints] [wa]s illegitimate," and that "Joseph's conduct during the divorce proceedings, as well as the numerous civil actions he filed after the divorce proceedings began, strongly suggest[ed] that Joseph uses litigation to attempt to harass, intimidate, and control Jennifer." The judge's "conclusion [wa]s buttressed by the New Hampshire Superior Court's 2016 decision to award attorney's fees to Jennifer and her father after finding that Joseph's claims against them were ‘without any reasonable basis in the facts provable by evidence,’ ‘frivolous,’ and apparently ‘designed to retaliate against [Jennifer] and/or harass her.’ " The judge observed that, "[w]ith the divorce proceedings now over, Joseph apparently seeks to continue to exercise some form of control over Jennifer by bringing one civil action after another against her and others who were involved in the divorce proceedings."
Upon considering "the totality of the circumstances," the judge concluded that "Joseph's primary motivating goal in bringing [the complaints] [wa]s [not] to seek damages for harm caused by the defendants’ allegedly unlawful conduct, [but] rather [ ] to interfere with and burden the defendants’ petitioning rights." It is also apparent from the judge's reasoning that she considered Joseph's claims against the defendants to be devoid of merit. See Blanchard I, 477 Mass. at 160-161 ("A necessary but not sufficient factor in this analysis will be whether the nonmovant's claim at issue is ‘colorable or ... worthy of being presented to and considered by the court,’ i.e., whether it ‘offers some reasonable possibility’ of a decision in the party's favor" [citations omitted]).
The judge's conclusions are well supported by the record and reflect careful, appropriate consideration of all relevant circumstances. We therefore discern no abuse of discretion in the judge's determination that Joseph failed to meet his burden under the second prong of the anti-SLAPP framework. See Reichenbach, 92 Mass. App. Ct. at 572 n.14. We likewise discern no abuse of discretion or error of law in the judge's allowance of the defendants’ special motions to dismiss. Blanchard II, 483 Mass. at 203.
c. Fee awards under the anti-SLAPP statute. Because we affirm the allowance of the special motions to dismiss, we conclude the judge did not err in awarding reasonable attorney's fees and costs, which are mandatory. See G. L. c. 231 § 59H ("If the court grants such special motion to dismiss, the court shall award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters" [emphasis added]); Polay v. McMahon, 468 Mass. 379, 388 (2014). The defendants were appropriately awarded fees for successfully defeating SLAPP claims. See Polay, supra (special movant need not prevail on all counts to qualify for award under § 59H, and judge has discretion to award fees beyond those incurred in bringing special motion).
The defendants are also entitled, pursuant to G. L. c. 231, § 59H, to their reasonable appellate attorney's fees and costs for this appeal, which Mauritz James and Jennifer have requested in their brief. Consistent with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), they should submit a detailed fee application, supported by affidavits, within two weeks of the issuance of this decision. Joseph shall submit an opposition, if any, within two weeks thereafter.
2. Gatekeeper order. Joseph contends that the judge's issuance of the gatekeeper order was an abuse of discretion, asserting that it was "simply beyond the court's purview and not available as relief under any statute or defense," and that it "allow[s] for the Defendants to commit any tort against [him] in the future and create a wall to [his] access to the courts." We disagree.
In appropriate circumstances, judges may exercise their inherent discretion to control a proliferation of filings by entering a limited filing order. See, e.g., Bishay v. Superior Court Dep't of the Trial Court, 487 Mass. 1012, 1013 (2021). A Superior Court judge may enjoin a plaintiff from bringing future legal proceedings without prior leave of the court when such an injunction is necessary to put "a stop to harassing, vexatious, and repetitious litigation." State Realty Co. of Boston v. MacNeil, 341 Mass. 123, 124 (1960). Such an order is especially appropriate where, as here, less-restrictive methods, including orders to pay over $20,000 in attorney's fees as sanctions in the divorce case and the New Hampshire Superior Court case, have not prevented frivolous and harassing filings. Cf. Brookline v. Goldstein, 388 Mass. 443, 448 (1983) (restricting access to courts premature where defendant had not demonstrated that monetary sanctions would not deter plaintiff from filing frivolous actions). The challenged gatekeeper order is narrowly tailored and designed to prevent the filing, in only one court, of vexatious, frivolous, and harassing suits against these particular defendants in connection with the divorce litigation; it neither prevents Joseph from filing all civil actions, nor obstructs his constitutional right of access to the courts. See State Realty Co. of Boston, supra. In light of the large number of frivolous filings Joseph has lodged against these defendants in connection with the divorce litigation, we discern no abuse of discretion in the narrowly tailored gatekeeper order issued here.
Joseph's other contentions not addressed here "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Conclusion. The December 19, 2017 order allowing the defendants’ motions to dismiss docket nos. 1681CV02842 and 1681CV03564 and allowing attorney's fees is affirmed. The December 19, 2017 order enjoining and restraining the plaintiff from filing, without prior leave of court, any additional civil complaints pertaining to the divorce in the Middlesex Superior Court against the defendants named in the consolidated actions is affirmed. The March 4, 2019 summary judgment dismissing docket no. 1681CV01913 is affirmed.
So ordered.
affirmed