Opinion
10-P-932
08-24-2011
LEVANGIE ELECTRIC CO., INC., & another v. BRITE-LITE ELECTRICAL CO., INC., & 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
The defendants appeal from the denials in the Superior Court of their special motions to dismiss certain counts of the plaintiffs' complaint, pursuant to G. L. c. 231, § 59H (the 'anti-SLAPP' statute). We affirm.
Background. We summarize the major events leading to this appeal, reserving detailed facts for the analysis section of this decision. The plaintiffs, LeVangie Electric Co., Inc., and Stephen R. LeVangie (together referred to as LeVangie), an electrical contracting company and its president, compete with defendants Brite-Lite Electrical Co., Inc. (Brite-Lite), and Signet Electronic Systems, Inc. (Signet), on public construction projects. In April, 2006, the defendant companies each filed sub-bid protests with the Attorney General challenging a sub-bid submitted by LeVangie on a school construction project for the city of Taunton (the Taunton bid protest). While Taunton and LeVangie were complying with the further evaluation of LeVangie's bid as required in a remand by the Attorney General on July 24, 2006, the defendant companies filed an action in the Superior Court on August 17, 2006, against LeVangie and Taunton seeking to enjoin the award of the electrical contract to LeVangie (the Taunton action), but preliminary injunctive relief was denied on August 24, 2006.
Signet filed a bid protest on September 20, 2006, against LeVangie on a Fall River project (the Fall River bid protest). Signet did not prevail in a decision on that protest issued by the Attorney General on December 12, 2006. On October 9, 2007, the parties in the Taunton action executed an agreement for judgment in favor of LeVangie and Taunton.
LeVangie filed a multi-count complaint against the defendant companies and two of their officers (together, the defendants) on April 13, 2009, alleging malicious abuse of process, intentional interference with contractual relations, defamation, civil conspiracy, and violations of G. L. c. 93A. The defendants sought to dismiss numerous counts of the complaint through their G. L. c. 231, § 59H, motions. In a decision issued on December 30, 2009, the judge denied the motions, on the principal ground that the plaintiffs' claims were not solely based on the defendants' 'petitioning activity' protected by § 59H, and subsequently denied motions for reconsideration.
The judge's decision. The judge ruled that the defendants' special motions to dismiss were directed at counts in LeVangie's complaint alleging abuse of process and allegations pertaining to the filing of the Taunton action. The judge noted that if the abuse of process counts arose solely from the initiation of the bid protest and the Taunton action, allowance of the special motions to dismiss would be in order. She determined, however, that the defendants made claims both to the Attorney General and to general contractors in the industry that Stephen LeVangie had committed perjury in the Taunton action and was engaged in fraudulent conduct. The judge concluded that these claims were made to convince those contractors not to do business with LeVangie. Accordingly, the judge ruled that the challenged counts involved more than the defendants' petitioning activities and denied the special motions.
On December 8, 2009, LeVangie filed a § 59H motion to dismiss Brite-Lite's counterclaims. Another judge allowed the motion on the ground that Brite-Lite's counterclaims were based solely on LeVangie's filing suit in the Superior Court. The judge also concluded that (1) LeVangie's abuse of process claim was not frivolous; (2) LeVangie's c. 93A claim was not devoid of any reasonable factual support or any arguable basis in law; and (3) LeVangie's conspiracy claim was supported by the joint actions of Brite-Lite and Signet in the Taunton action. That ruling has not been appealed and plays no part in our decision of the appeal before us.
Analysis. We review an appeal from the denial of a c. 231, § 59H, special motion to determine whether an abuse of discretion or error of law appears. Moriarty v. Mayor of Holyoke, 71 Mass. App. Ct. 442, 445 (2008). The moving party 'must make a threshold showing . . . that the claim [sought to be dismissed] is 'based on' the special movant's protected petitioning activities alone and has no other 'substantial basis.' . . . If the special movant fails to make the required showing, the challenged claim survives' (footnote omitted). Adams v. Whitman, 62 Mass. App. Ct. 850, 852-853 (2005), quoting from Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998).
The defendants' Taunton bid protest initially appears to have been filed as an appropriate petitioning activity, but soon the defendants expanded their efforts seeking to disqualify LeVangie's bids because it performed certain electrical sub-bid work with employees on its own payroll rather than using subcontractors such as Brite-Lite, Signet, and others. The principal issue throughout this case is whether LeVangie customarily performed certain work with its own employees. An explanation of that issue as applied in the bid protest decisions by the Attorney General is given in the margin.
In the two bid protests in this case (Taunton and Fall River), the defendants challenged the award of subcontracts to LeVangie on the ground that it did not customarily perform certain electrical work with its own employees in conformance with G. L. c. 149, § 44F(3).
The Taunton protest, decided July 24, 2006, was remanded to the city for a determination whether LeVangie customarily performed the work with its own employees. LeVangie subsequently submitted payroll information and was awarded the subcontract.
In the Fall River protest, decided December 12, 2006, Signet challenged whether LeVangie customarily performs certain electrical work in two projects at issue, and raised the same challenge to nine other projects, asserting that on some of them LeVangie 'lied to the awarding authority . . . and . . . fraudulently bid shopped the work.' However, the decision concluded that 'LeVangie was able to rebut Signet's accusations that LeVangie lied about performing its own work on nine recent projects,' and that 'LeVangie has produced credible evidence that it customarily performs its own technology and A/V work in at least 85% of its projects.'
We note that LeVangie was the low bidder on both projects; Brite-Lite was second in the Taunton project, and Signet the second in the Fall River project.
After the Attorney General issued the Taunton bid protest decision on July 24, 2006, the defendant companies filed a complaint for an injunction in the Superior Court on August 17, 2006, seeking to enjoin Taunton from awarding the contract to LeVangie. While the request for an injunction soon was denied for the reason that the defendants 'failed to demonstrate a likelihood of success on the merits,' the defendants attempted to obtain reconsideration. After the denial of two motions for reconsideration in October, 2006, the defendants filed another motion for reconsideration on November 10, 2006, raising an allegation of perjury by LeVangie. This issue had been raised in a letter of October 20, 2006, to the Superior Court requesting suspension of consideration of the defendants' motion for reconsideration, stating that an amended motion would be filed.
Although Signet alone filed the Fall River bid protest, that protest again asked the Attorney General to rule that LeVangie did not customarily perform the work. Moreover, Signet cited the same nine projects which had been cited by the defendants in the complaint for injunctive relief. In addition, Signet introduced the allegation of perjury. Before that bid protest was decided, Signet wrote to two contractors with whom LeVangie was under contract, referring to the perjury allegations in the Taunton action and asserting that LeVangie was not qualified to do the work. The defendants also allegedly made false claims to LeVangie's bonding company, Fidelity and Deposit Company of Maryland. Following the Fall River bid protest decision issued by the Attorney General on December 12, 2006, the defendants withdrew their motion for reconsideration of the denial of the injunction.
Nevertheless, in January, 2007, the defendants moved to amend their complaint in the Taunton action, raising the same issues as presented to the Attorney General and decided in the Fall River bid protest. The motion was denied by another judge for 'substantially the reasons stated in [LeVangie's] opposition,' and the defendants did not appeal.
As previously noted, the petitioning activity begun in the Taunton bid protest was soon followed by conduct of the defendants aimed at disqualifying LeVangie's bids, actions which readily appear to be outside the scope of petitioning. Before Taunton complied with the remand of the Attorney General, the defendants sought to enjoin Taunton from awarding the bid, then presented the same issue whether LeVangie performed the work with its own personnel to different forums for resolution. Moreover, the defendants submitted their allegation of perjury to the Attorney General and the Superior Court and while that allegation was pending, presented it to two contractors in an attempt to disqualify LeVangie from the work it was under contract to perform.
These actions of the defendants beyond the Taunton bid protest were beyond protected petitioning, and constitute an abuse of the bid protest process. '[T]he 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.' Adams v. Whitman, 62 Mass. App. Ct. at 855. The defendants have failed to show 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.' Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. at 167-168.
The defendants have advanced other arguments which we do not address and have not overlooked. There is nothing of merit in them which requires discussion. See Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Conclusion. The judge neither committed an error of law nor abused her discretion in denying the defendants' G. L. c. 231, § 59H, special motions to dismiss.
We deny LeVangie's motion for appellate attorney's fees and costs, filed prior to oral argument.
Order denying defendants' special motions to dismiss under G. L. c. 231, § 59H, affirmed.
By the Court (Cypher, Trainor & Meade, JJ.),