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 ...