Opinion
17-P-1528
03-14-2019
W.B. & others v. E.S.
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
E.S., the defendant, appeals from the order denying a special motion to dismiss under the anti-SLAPP statute, G. L. c. 231, § 59H. Section 59H is intended to curb SLAPP suits, which are "generally meritless suits" that "use litigation to intimidate opponents' exercise of rights of petitioning and speech." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998), quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816-817 (1994). The parties in this case are neighbors, and their dispute relates in part to an earlier anti-SLAPP lawsuit between them. However, because the plaintiffs' lawsuit complains of more than just the petitioning activity by E.S., § 59H is inapplicable and denial of the special motion was warranted. We therefore affirm.
"SLAPP is an acronym for 'strategic litigation against public participation.'" Cadle Co. v. Schlichtmann, 448 Mass. 242, 242 n.2 (2007).
Background. In 2014, E.S. made a complaint to city officials that the plaintiffs were using their residential property for commercial purposes. In response, the plaintiffs sued E.S. for harassment (first complaint). E.S. filed a special motion to dismiss the first complaint under § 59H, which was granted, and final judgment was entered in her favor. In 2016, E.S. obtained an execution on that final judgment, which encompassed the mandatory award of attorney's fees and costs under § 59H. See Office One, Inc. v. Lopez, 437 Mass. 113, 126 (2002). A hearing was held in District Court in 2017 to determine the plaintiffs' collective ability to satisfy the execution.
T.I. was not included as a plaintiff in the first complaint.
One day after the hearing, the plaintiffs filed a new complaint for harassment against E.S. (second complaint). The second complaint made reference, in general terms, to the fact that E.S. had flagged the plaintiffs' conduct to city officials and that E.S. had moved to collect mandatory attorney's fees and costs after prevailing on her previous anti-SLAPP motion. However, the second complaint also included a number of other unrelated allegations against E.S., including, "We can't even go outside our house without her watching us, beeping her alarm, calling the places we volunteer and harassing them because we associate with them"; "We are always being watched from the moment we step outside on a daily basis to the moment we go back in"; and "[E.S.] has even tried to go through our garbage and then cornered the garbage men while they were picking it up."
In response to the second complaint, E.S. filed another § 59H special motion to dismiss. After a hearing where E.S.'s counsel acknowledged that parts of the second complaint did not stem from petitioning activity, the motion judge denied the motion on the basis that the plaintiffs' second complaint was not based solely on petitioning activity, as required by § 59H. E.S. timely appealed.
Judge: "[E.S.] has even tried to go through our garbage and then corner the garbage men while they were picking it up. We had to call the president of the company. That's a supplementary process action?" Counsel: "That is not but my client denies that." Judge: "You just said the whole thing was based upon supplementary process. It's not. Is it?" Counsel: "Well it's also not illegal if you leave your garbage on the street if someone was to look through it, Your Honor. That's not harassment."
Discussion. On appeal, E.S. argues that the harassment claims have no substantial basis other than or in addition to the petitioning activities. We disagree. "To invoke [§ 59H]'s protection, the special movant need show, as a threshold matter, through pleadings and affidavits, that the claims against it are, in fact, 'based on' its petitioning activities alone and have no substantial basis other than or in addition to its petitioning activities." Office One, Inc., 437 Mass. at 122. As mentioned supra, while a portion of the facts alleged in the plaintiffs' second complaint referred to the initial dispute and E.S.'s lawful attempt to collect on the judgment on the first complaint, the plaintiffs also make a number of other allegations regarding E.S.'s conduct that go beyond petitioning activity. As such, there was no error.
Order denying special motion to dismiss affirmed.
By the Court (Massing, Desmond & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 14, 2019.