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Little v. Summer

Superior Court of Massachusetts, Middlesex

February 17, 2017

Barbara E. Little [1]
v.
David B. Summer, Esq. et al. [2] No. 136588

          Filed February 22, 2017

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS UNDER G.L.c. 231, § 59H AND MASS.R.CIV.P. 12(B)(6)

          Peter B. Krupp, Justice of the Superior Court.

         Defendant Robert J. Beland (" Robert") challenged the will of his deceased mother, Joan Beland (" Joan"), in the Essex Probate Court. He was represented by defendant David B. Summer (" Summer"). After a trial, the Probate Court upheld the will. This action followed, with plaintiff, as personal representative of Joan's estate, suing both defendants for abuse of process and Summer for violating Mass.R.Civ.P. 11, in connection with their pursuit of the will contest. Both defendants now move to dismiss under the Massachusetts anti-SLAPP statute, G.L.c. 231, § 59H, arguing that the plaintiff's claims arise out of protected petitioning activity. For the reasons that follow, defendants' motion is ALLOWED .

         DISCUSSION

          The Massachusetts anti-SLAPP statute, G.L.c. 231, § 59H, is directed at " 'meritless suits' that use litigation to 'intimidate opponents' exercise of rights of petitioning and speech." Vittands v. Sudduth, 49 Mass.App.Ct. 401, 413, 730 N.E.2d 325 (2000), quoting Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161-64, 691 N.E.2d 935 (1998). It " was designed to immunize parties from claims based on their petitioning activities by allowing a party to file a special motion to dismiss." Vittands, 49 Mass.App.Ct. at 413. The anti-SLAPP statute defines petitioning activity to include " any written or oral statement made before or submitted to a . . . judicial body." G.L.c. 231, § 59H.

          A party seeking dismissal pursuant to the anti-SLAPP statute must " demonstrate, through pleadings and affidavits, 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.'" Cadle Co. v. Schlichtmann, 448 Mass. 242, 249, 859 N.E.2d 858 (2007), quoting Duracraft, 427 Mass. at 167-68. " The focus solely is on the conduct complained of, and if the only conduct complained of is petitioning activity, than there can be no other 'substantial basis' for the claim." Office One, Inc. v. Lopez, 437 Mass. 113, 122, 769 N.E.2d 749 (2002) (emphasis in original). Here, the only basis for plaintiff's current action is Robert's conduct (and that of his then-counsel) in pursuing his challenge in the Probate Court. Plaintiff concedes that her claims here are based on defendants' petitioning activities alone.

         Having established the first element of an anti-SLAPP challenge, " [t]o withstand the special motion to dismiss, " the plaintiff opposing the motion " must show, by a preponderance of the evidence, that the [defendants'] petitioning activity was devoid of any reasonable factual or legal support and that it caused the nonmoving party actual injury." Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 484, 68 N.E.3d 1180 (2017). This " burden is difficult to meet." Keegan v. Pellerin, 76 Mass.App.Ct. 186, 190, 920 N.E.2d 888 (2010). Unless the plaintiff carries this burden, the special motion to dismiss must be allowed.[3]

         Plaintiff has provided numerous affidavits including her own and one from Malcolm McKay, Esq., in addition to medical records, all of which plaintiff asserts support the conclusion that the challenge to Joan's capacity to amend her will lacked any reasonable factual support. Malcolm McKay's affidavit states Joan was not " mentally compromised in her decision-making" and that Joan was in his opinion " competent." Plaintiff also states in her affidavit that she " never observed [Joan] to be confused or forgetful" and " never pressured Joan to make decisions."

         Likewise, defendants have provided several affidavits including Robert's affidavit in which he states Joan " experienced frequent bouts of confusion and forgetfulness, " had " almost no short term memory" and asserts plaintiff " maliciously fabricated" lies about him ransacking Joan's house in order to " alienate" him from Joan. The affidavits of Joan Hardy, Heather D. Roy and Kathleen Hayes corroborate these assertions. Joan Hardy, who was Joan's health care proxy for nearly 30 years, states in her affidavit that after Joan's cardiac arrest episode " Joan suffered mental deficits including frequent forgetfulness and confusion" and that it was her belief that plaintiff " had manipulated Joan to change her will." Heather D. Roy and Kathleen Hayes similarly assert " Joan was confused and disoriented" and plaintiff " fabricated the story" of Robert ransacking Joan's house in order to " alienate" Joan from Robert.

         Notwithstanding the plaintiff's affidavits and medical records, the question before me " is not which of the parties' pleadings and affidavits are entitled to be credited or accorded greater weight, but whether the nonmoving party has met its burden []by showing that the underlying petitioning activity by the moving party was devoid of any reasonable factual support or arguable basis in law." Benoit v. Frederickson, 454 Mass. 148, 154 n.7, 908 N.E.2d 714 (2009). Here, defendants' affidavits have " provided reasonable factual support (i.e., evidence that, if believed, would support a finding in the defendants' favor)." Id.

         ORDER

         Defendants' Special Motion to Dismiss Pursuant to G.L.c. 231, § 59H (Docket #13) is ALLOWED .

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