Present: Greenberg, Porada, & Green, JJ.
The opinion of the court was delivered by: Greenberg, J.
Negligence, Installation of septic system. "Anti-SLAPP" Statute. Abuse of Process.
Civil action commenced in the Superior Court Department on September 25, 2001.
The case was heard by Ernest B. Murphy, J., on a motion to dismiss.
Both Whitman & Bingham Associates, Inc. (the corporation), and its principal, Stephen Whitman, engineered a septic tank system for Wesley and Phyllis Price to be installed on their property in the town of Ashburnham. During that time the property was under a purchase and sale agreement to the plaintiffs, Wayne and Terri Adams. About three months after the property was conveyed to them, they detected foul odors emanating from the septic tank and observed extensive water runoff spilling onto local roadways. Additionally, the local board of health wrote the Adamses a letter indicating that the septic system was not in compliance with regulatory requirements. The Adamses contend in their resulting suit that the corporation negligently prepared the septic design plan and that Whitman himself was negligent in his preparation of the plan and failed to properly supervise those corporate employees who did the necessary engineering work.
In response to the claim against him as an individual, Whitman filed a counterclaim for abuse of process. In his unverified pleading, he alleged that he had acted solely within the scope of his employment for the corporation for which he was the principal and that the Adamses' claim was brought "wrongfully and maliciously . . . and [was] solely intended to injure and harass [him]."
The Adamses made a special motion to dismiss Whitman's counterclaim pursuant to G. L. c. 231, § 59H, the anti-SLAPP statute. They argued that since their lawsuit against Whitman was petitioning activity, it was entitled to the protection of § 59H. Wayne Adams filed two affidavits in support of the special motion, one of his own and one of Duncan Brown, an expert witness in engineering who concluded that Whitman was personally negligent in preparing and supervising implementation of the septic design plan. Whitman submitted only a memorandum in opposition to the special motion to dismiss. After a nonevidentiary hearing, a judge of the Superior Court denied the Adamses' special motion to dismiss. Despite concluding that Whitman's abuse of process claim was solely based on the Adamses' petitioning activities, he ruled that the anti-SLAPP statute did not apply here because the Adamses' claim against Whitman did not raise an issue of public concern. The judge, therefore, did not perform the rest of the analysis dictated by G. L. c. 231, § 59H. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998) (Duracraft).
On appeal, the Adamses contend that the judge's reasoning was in error.*fn3 On that point, we agree. See id. at 164 (issue of public concern not a prerequisite for applying anti-SLAPP statute); McLarnon v. Jokisch, 431 Mass. 343, 345-347 (2000) (again interpreting anti-SLAPP statute to apply even where no issue of public concern involved). We must therefore consider in our analysis whether and how the anti-SLAPP statute may apply to Whitman's abuse of process claim. We conclude that the Adamses made a showing that Whitman's abuse of process claim was based solely on their petitioning activity and so satisfied their burden at the first stage of the anti-SLAPP procedure. We also conclude that Whitman did not meet his burden of showing that the Adamses' petitioning activity (filing suit against him) was devoid of arguable legal basis or reasonable factual support.
In the Duracraft case, supra, the Supreme Judicial Court first addressed the difficulties of faithfully serving both the letter and the spirit of the anti-SLAPP statute, the genesis of which lay in the protection of conservation-minded activist citizens from harassing lawsuits by unscrupulous real estate developers. 427 Mass. at 161. See Kobrin v. Gastfriend, 443 Mass. 327 (2005). By interpreting the reach of the statute to include litigants whose private interests were equally at stake, Duracraft, supra at 164, the court reserved for future resolution the potential conflicts between the statute and accepted common law principles. See McLarnon v. Jokisch, 431 Mass. at 347 (malicious prosecution); Office One, Inc. v. Lopez, 437 Mass. 113, 123 (2002) (defamation). See also In the Matter of the Discipline of an Attorney, 442 Mass. 660, 673-674 & n.27 (2004) (bar discipline).
Under Duracraft, a two-step procedure applies generally to a special motion to dismiss a claim pursuant to § 59H. First, the special movant (the Adamses, in this case) must make a threshold showing through pleadings and affidavits that the claim is "based on" the special movant's protected petitioning activities*fn4 alone and has no other "substantial basis." Duracraft, 427 Mass. at 167-168. If the special movant fails to make the required showing, the challenged claim survives. However, if the showing is made, the second step is reached, in which the nonmoving party (Whitman, in this case) may preserve its claim only through showing by a preponderance of the evidence,*fn5 based on the pleadings and affidavits, that the petitioning activity is "devoid of any reasonable factual support or any arguable basis in law," and that "the [special movant's] acts caused actual injury" to the nonmoving party. Fabre v. Walton, 436 Mass. 517, 520 (2002), quoting from G. L. c. 231, § 59H.
The instant case arises in the context of the common law tort of abuse of process, which comprises the following elements: "(1) 'process' was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage." Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396, 407 (2002), S.C. 442 Mass. 1041 (2004), quoting from Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775-776 (1986). The tort has been described as usually involving a form of coercion to obtain collateral advantage not properly involved in the proceeding itself, similar to extortion. See Powers v. Leno, 24 Mass. App. Ct. 381, 383-384 (1987), and authorities cited. It is sometimes said that "[t]he subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed . . . ." Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. 557, 558 (1988), quoting from Restatement (Second) of Torts § 682, comment a (1977). It is immaterial to an abuse of ...