Barbara E. Little 
David B. Summer, Esq. et al.  No. 136588
February 22, 2017
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
DISMISS UNDER G.L.c. 231, § 59H AND MASS.R.CIV.P.
B. Krupp, Justice of the Superior Court.
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 .
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.
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.
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.
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
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.
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)."
Special Motion to Dismiss Pursuant to G.L.c. 231, § 59H
(Docket #13) is ALLOWED .