Opinion
15-P-138
12-01-2015
PAUL QUIGLEY & others v. METRIC ELECTRIC, INC., & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this interlocutory appeal, the plaintiffs (defendants-in-counterclaim) claim that the motion judge erred in denying their special motions to dismiss pursuant to G. L. c. 231, § 59H. The plaintiffs contend that: (1) the judge lacked the discretion to allow the defendants' motion to voluntarily dismiss their abuse of process claim under Mass.R.Civ.P. 41(a)(2), 365 Mass. 803 (1974); and (2) the judge erroneously denied the plaintiffs' special motions to dismiss because the defendants' counterclaims were based solely on the plaintiffs' petitioning activities. We affirm.
The motion judge also denied the plaintiffs' motions for judgment on the pleadings; those orders are not involved in this appeal.
1. Abuse of process and defendants' voluntary dismissal. The plaintiffs assert, for the first time on appeal, that the motion judge did not have the discretion to allow the defendants' motion for voluntary dismissal under rule 41(a)(2) regarding the abuse of process claim. The plaintiffs, however, did not oppose the defendants' motion below, and thus this argument is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
The plaintiffs also claim that the motion judge erred in denying their first special motion to dismiss with regard to the abuse of process claim. However, because the claim was dismissed pursuant to rule 41(a)(2) without opposition, the plaintiffs' claim relative to the first motion to dismiss is moot. A claim is moot when the parties no longer have a stake in the determination of the issue presented, First Natl. Bank of Boston v. Haufler, 377 Mass. 209, 211 (1979), when the dispute has become hypothetical, or when it does not involve an actual controversy, Sullivan v. Secretary of the Commonwealth, 233 Mass. 543, 546 (1919). See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298 (1975). That is what has occurred here.
2. Plaintiffs' second special motion to dismiss. The plaintiffs next claim that the motion judge erred in his denial of their second special motion to dismiss regarding the defendants' intentional interference with contractual relations, civil conspiracy, and G. L. c. 93A counterclaims, because those claims were solely based on petitioning activities. We disagree. The party filing a special motion to dismiss under § 59H must make a threshold showing that the claims against it are "'based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Fustolo v. Hollander, 455 Mass. 861, 865 (2010), quoting from Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998).
Here, in addition to the plaintiffs' petitioning activities, the defendants allege that: (1) the plaintiffs "entered into negotiations with one or more general contractors for whom Metric had done work or was currently doing work"; (2) the plaintiffs "conspired to form another company, put Metric out of business, and take Metric's business and contractual relationships"; and (3) "Quigley, as president of [the new company] unfairly competed with Metric utilizing unfair and deceptive business practices."
Given these allegations, the motion judge properly determined that the plaintiffs failed to satisfy their burden to show that the claims against them were solely based on petitioning activities. As such, there was no error of law or abuse of discretion in the denials of the special motions to dismiss.
We deny the plaintiffs' request for appellate attorney's fees.
Orders denying special motions to dismiss affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 1, 2015.