Opinion
19-P-419
03-05-2020
W.R.S. v. R.S. & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (son), appeals from a judgment of a Superior Court judge, allowing the special motion to dismiss, pursuant to the anti-SLAPP statute, G. L. c. 231, § 59H ( § 59H ), of the defendant (father), and awarding attorney's fees and costs to the defendants. We affirm.
Background. The son, a forty-one year old disabled adult, moved into his parents' home due to medical issues -- an arrangement that, as we previously described, proved to be "inharmonious." W.R.S. v. R.S., 93 Mass. App. Ct. 1104 (2018). In his first amended complaint, the son alleged that the father, along with the other named defendants (his mother and his two brothers), harassed, ridiculed, ignored, and belittled him, forcing him to leave the home. The defendants moved to dismiss all counts of the amended complaint pursuant to Mass. R. Civ. P. 12 (b) (6), and also moved to dismiss the son's abuse of process claim (which had been alleged only against the father) pursuant to § 59H. We affirmed dismissal of all counts pursuant to Mass. R. Civ. P. 12 (b) (6) and affirmed that the father had met his initial burden to show, under the framework established in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998), that the son's abuse of process claim was based solely on the father's protected petitioning activity. W.R.S., 93 Mass. App. Ct. at 1104. However, because while the son's appeal was pending, the Supreme Judicial Court augmented the Duracraft framework in Blanchard v. Steward Carney Hosp., 477 Mass. 141 (2017) (Blanchard I ), we remanded for the limited purpose of determining whether, under that augmented framework, the abuse of process claim could survive the special motion. Id. On remand, the judge found that it could not and allowed the special motion to dismiss. Pursuant to § 59H, the judge awarded $55,000 in attorney's fees and costs, reducing the requested fees and costs by approximately $30,000.
The first amended complaint included claims of abuse of process, negligence, gross negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, conversion, discrimination, civil rights violations, fraudulent concealment/misrepresentation, and civil conspiracy.
Discussion. 1. Law of the case. On appeal, the son raises arguments unrelated to the propriety of the judge's application of the augmented Duracraft framework and award of fees and costs under the anti-SLAPP statute. Pursuant to the law of the case doctrine, we decline to "reconsider questions decided upon an earlier appeal in the same case." Peterson v. Hopson, 306 Mass. 597, 599 (1940). "[U]nless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice," we should not reopen an issue that was already decided (citation omitted). King v. Driscoll, 424 Mass. 1, 8 (1996). None of those circumstances occurred in this case. Accordingly, we limit our analysis to the narrow scope of our prior remand.
The son argues that the father committed a fraud on the court and that justice requires reopening of these issues. In view of the final judgment in the father's G. L. c. 258E matter, which is discussed infra, and our prior affirmance in W.R.S., 93 Mass. App. Ct. 1104, of the dismissal of all of the claims pursuant to Mass. R. Civ. P. 12 (b) (6), we disagree.
2. Abuse of process. The son's abuse of process claim centers on the father's pursuit of a harassment prevention order (HPO) pursuant to G. L. c. 258E. Briefly, the father obtained a temporary HPO in February 2015, and the son was removed from the family home. After litigation, including two appeals to this court, the father obtained a permanent HPO, which we affirmed. See R.S. v. W.S., 92 Mass. App. Ct. 1110 (2017). The son alleges that the father abused this process by committing perjury, using the HPO to circumvent Housing Court procedures, and forcing him to move prematurely into a hotel without his medications.
The father sought an ex parte HPO against the son. A judge issued the order and scheduled a hearing after notice. At the hearing, where both parties testified before a second judge, the judge issued a one-year extension order. After further hearings before the first judge, the HPO was made permanent. Prior to the issuance of the permanent order, the son appealed from the one-year order. On that appeal, a panel of this court remanded the matter for the judge to make findings of fact; on remand, the judge did not make findings because the transcript did not sufficiently refresh his recollection, and we vacated the one-year order. The son then appealed the permanent order, which we affirmed. R.S. v. W.S., 92 Mass. App. Ct. 1110 (2017).
As set forth supra, we previously affirmed the finding that the father met his initial burden under the Duracraft framework to demonstrate that the son's abuse of process claim was solely based on the father's application for an HPO, which is petitioning activity. W.R.S., 93 Mass. App. Ct. 1104. See Fabre v. Walton, 436 Mass. 517, 523 (2002) ("The filing of a complaint for an abuse protection order and the submission of supporting affidavits are petitioning activities encompassed within the protection afforded by" § 59H ). On remand, the burden shifted to the son to show that "the anti-SLAPP statute nonetheless does not require dismissal." 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 518 (2019). Based on the full record, including written submissions from both parties and oral arguments at two separate hearings, the judge found that the son failed to meet his burden. We review the judge's decision under the second prong of the Duracraft framework for an abuse of discretion. See Blanchard v. Steward Carney Hosp. Inc., 483 Mass. 200, 203 (2019) (Blanchard II ).
A special motion to dismiss pursuant to § 59H begins with the moving party's threshold burden to show that the conduct complained of is "solely based on" protected petitioning activity. Blanchard I, 477 Mass. at 158, citing Duracraft, 427 Mass. at 165, 167.
The son could satisfy his burden under the second prong in one of two ways or paths. See 477 Harrison Ave., LLC, 483 Mass. at 521. Under the first path, the son must demonstrate that the father's petitioning activity lacked "any reasonable factual support" or "any arguable basis in law" and caused the son injury. Id. at 521-522. See Blanchard I, 477 Mass. at 158-159. The son did not meet this burden because, as set forth supra, the father obtained a final judgment allowing a permanent HPO. See Fabre, 436 Mass. at 524 (final judgment granting c. 209A order "is conclusive evidence that the petitioning activity was not devoid of any reasonable factual support or arguable basis in law").
Contrary to the son's argument, the fact that a panel of this Court vacated the one-year extension HPO (on the basis that the judge who issued it did not make the required findings) is an insufficient basis to sustain his burden under the first path in light of final judgment issuing the permanent HPO in favor of the father. R.S., 92 Mass. App. Ct. 1110.
Under the second path, the son must establish "that the motion judge could conclude with fair assurance," based on the totality of the circumstances, the pleadings, and any affidavits, that the challenged claim was colorable and not retaliatory. 477 Harrison Ave., LLC, 483 Mass. at 522-523, citing Blanchard II, 483 Mass. at 204, 209. A claim is colorable if it is "worthy of being presented to and considered by the court" because it "offers some reasonable possibility of a decision in the party's favor" (citations omitted). Blanchard I, 477 Mass. at 160-161.
The son's argument that the types of proof required at this second stage is unknown is without merit. See G. L. c. 231, § 59H (requiring consideration of "pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based").
"A [claim] for abuse of process has three elements: (1) process was used, (2) for an ulterior or illegitimate purpose, (3) resulting in damage" (quotations omitted). 477 Harrison Ave., LLC, 483 Mass. at 526-527. Here, the son's abuse of process claim set forth the requisite elements. First, there is no question that the father's application for an HPO is the use of process. Second, the son alleged that his father had an ulterior motive to circumvent the Housing Court procedures and to evict him prematurely. Third, the son alleged he suffered medical damage due to the lack of sufficient time to move out and retrieve his medications. Although the permanent HPO was affirmed, contrary to the father's argument, the meritorious nature of his HPO application is immaterial in determining whether the son's abuse of process claim was colorable. "Proof of the groundlessness of an action is not an essential element," and an abuse of process claim is colorable "even [if] the proceedings terminated in favor of the person instituting or initiating them" (quotation and citation omitted). 477 Harrison Ave., LLC, supra at 527.
However, the son failed to show that his abuse of process claim was not retaliatory. A claim is not retaliatory if the "primary motivating goal in bringing the challenged claim was not to interfere with and burden [the father's] ... petition rights, but to seek damages for the personal harm to [the son] from [the father's] alleged ... [legally transgressive] acts" (quotations omitted). 477 Harrison Ave., LLC, 483 Mass. at 528. Here, the son does not articulate any goal other than to obtain damages stemming from the father's legitimate exercise of his petition rights. The orders the father obtained through the HPO are authorized by the statute. G. L. c. 258E, § 3 (a ) (iii). We discern no error in the judge's conclusion that the son failed to meet his burden to show that his abuse of process claim was not retaliatory. The son's only argument in this regard is that the father obtained the HPO through misrepresentations. This argument is unavailing in view of the finality of the permanent HPO, as we have previously explained. See W.R.S., 93 Mass. App. Ct. 1104. In affirming the permanent order, the panel rejected the son's argument that the father had misled the court. R.S., 92 Mass. App. Ct. at 1110. Moreover, as set forth supra, we affirmed the dismissal of all claims, including the abuse of process claim, pursuant to Mass. R. Civ. P. 12 (b) (6) ; accordingly, no damages are available, and the special motion was properly allowed.
3. Second amended complaint. The son argues that the judge erred in denying his motion for leave to file a second amended complaint. Because the proposed amendment of the abuse of process claim would be futile, the judge did not abuse his discretion. See Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264 (1991) ; Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004) (no abuse of discretion in denying motion to amend where, "[n]otwithstanding the absence of an explicit statement of reasons for that denial, justification for the judge's action appears in the record before us" [citation omitted] ). An amended complaint is futile if it "would not have survived a motion to dismiss on preclusion grounds." Mancuso, supra.
The son also makes an argument regarding the Superior Court's return of his rule 9A package concerning his motion to file a second amended complaint. We need not reach the merits of that argument because we conclude, infra, there was no abuse of discretion in denying the motion for leave to file a second amended complaint.
The son failed to provide a copy of the proposed second amended complaint on appeal; however, the son described the amendment as focusing "on the facts and evidence specifically and narrowly relating to the [a]buse of [p]rocess [c]ount and accompanying proof of damages" and "to adduce the facts which elucidate [the father's] abuse of process before, during, and after [the father's] petitioning activity." This court already found that the judge properly dismissed the abuse of process claim pursuant to Mass. R. Civ. P. 12 (b) (6) based on collateral estoppel because "he had the opportunity to litigate these issues when contesting" the HPO. W.R.S., 93 Mass. App. Ct. 1104. Accordingly, allowing filing of the proposed second amended complaint would have been futile; the son has not shown it would have survived dismissal on preclusion grounds. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 679 n.8 (2011) (dismissal appropriate in cases of collateral estoppel).
4. Attorney's fees and costs. The son argues that the judge abused his discretion in awarding attorney's fees and costs. The anti-SLAPP statute mandates the award of a prevailing special movant's "costs and reasonable attorney's fees." G. L. c. 231, § 59H. See North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 872 (2009). The judge has the discretion to determine what is "reasonable" under § 59H and we decline to uphold a fee award only if it is clearly erroneous. Id. at 872.
Here, the judge applied the "lodestar" method in determining the award amount, which is a reasonable method for calculating attorney's fees and costs. See, e.g., Fontaine v. Ebtec Corp., 415 Mass. 309, 325-326 (1993) ; Brady v. Citizens Union Sav. Bank, 91 Mass. App. Ct. 160, 161-162 (2017). Such an award need not be limited to those fees solely attributable to the special motion to dismiss. See Polay v. McMahon, 468 Mass. 379, 388 (2014) ("A judge [ ] has discretion to award attorney's fees and costs beyond those incurred in bringing the special motion itself"); Office One, Inc. v. Lopez, 437 Mass. 113, 126 (2002) (fee award not "limited to legal work incurred in bringing the special motion itself"). On this record, the son has not shown that the judge abused his discretion.
The lodestar method refers to the calculation of reasonable attorney's fees by multiplying the number of hours reasonably spent on the case by a reasonable hourly rate. See Brady v. Citizens Union Sav. Bank, 91 Mass. App. Ct. 160, 161 n.7 (2017).
5. Appellate fees and costs. Pursuant to § 59H, we must allow the defendants' request for reasonable appellate attorney's fees and costs on appeal. The defendants may seek such an award in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 & n.1 (2004).
We deny the father's requests for sanctions and double appellate costs.
Judgment affirmed.