Heard: April 10, 2019.
action commenced in the Worcester Division of the District
Court Department on February 10, 2017. A special motion to
dismiss was heard by Paul F. LoConto, J.
E. Amorello for the defendant.
Gallagher (Kara Larzelere also present) for the plaintiff.
Present: Rubin, Henry, & Wendlandt, JJ.
case requires us to apply the
"anti-SLAPP"statute, G. L. c. 231, § 59H, to a
permissive counterclaim. The defendant, 290 Auto Body, Inc.
(290 Auto Body), appeals from an order of the District Court
allowing the special motion of the plaintiff Citizens
Insurance Company of America (Citizens) to dismiss 290 Auto
Body's amended counterclaim under the anti-SLAPP statute.
We conclude that Citizens failed to meet its threshold burden
required to support a special motion and therefore, we
summarize the facts from the pleadings in the record. See G.
L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1
("the court shall consider the pleadings and supporting
and opposing affidavits stating the facts upon which the
liability or defense is based"); Duracraft Corp. v.
Holmes Prods. Corp., 427 Mass. 156, 167 (1998)
October 29, 2016, the operator of a car insured by Citizens,
a licensed foreign insurer, was involved in an accident. The
inoperable car was towed to 290 Auto Body, a licensed auto
body repair shop. An appraiser inspected the car and declared
it a total loss. 290 Auto Body subsequently issued a
"Total Loss Bill" to Citizens in the amount of $3,
055.02. Although Citizens disputed some of the charges, to
avoid accrual of additional charges it paid the bill in full
and removed the car from 290 Auto Body. On February 10, 2017,
Citizens filed a complaint alleging three counts against 290
Auto Body: (1) fraud, (2) declaratory judgment, and (3)
violation of G. L. c. 93A.
Auto Body timely filed an answer and a counterclaim not
related to the transaction that formed the basis for
Citizens' complaint. Rather, 290 Auto Body alleged that
Citizens' representatives appeared at 290 Auto Body one
week after Citizens filed its complaint, and that those
representatives engaged in aggressive behavior in front of
employees and customers, including an alleged assault upon
290 Auto Body's president, that "disrupted the
ordinary business operation" of 290 Auto Body and caused
it damages. The claim was not captioned, which left some
ambiguity as to whether it was a claim for tortious
interference with 290 Auto Body's contractual relations
or for assault (although the president was not added as a
party), or both. See Guzman v. Pring-Wilson, 81
Mass.App.Ct. 430, 434 (2012), quoting Restatement (Second) of
Torts § 21(1) (1965) (assault "is an act done with
the intention of causing 'a harmful or offensive contact
with the person of the other . . ., or an imminent
apprehension of such a contact'") . Citizens filed a
motion to dismiss 290 Auto Body's counterclaim for
failure to state a claim. See Mass. R. Civ. P. 12
(b) (6), 365 Mass. 754 (1974). 290 Auto Body then filed an
answer and amended counterclaim making slight alterations but
again failing to unambiguously identify its cause(s) of
8, 2017, Citizens filed a motion to dismiss 290 Auto
Body's amended counterclaim for failure to state a claim
and a special motion to dismiss the amended counterclaim
pursuant to G. L. c. 231, § 59H. At the hearing on the
motions, 290 Auto Body clarified that the alleged assault on
its president damaged the corporation's business (so the
counterclaim is for tortious interference). The judge allowed
the special motion to dismiss and did not rule on the motion
based on failure to state a claim. 290 Auto Body appealed
from the (corrected) judgment dismissing the amended
Laws c. 231, § 59H, was enacted "to counteract
'SLAPP' suits, defined broadly as 'lawsuits
brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for
the redress of grievances.'" Blanchardv. Steward Carney Hosp., Inc., 477 Mass. 141, 147
(2017), quoting Duracraft, 427 Mass. at 161. Under
the statute, a party may file a special motion to dismiss if
"the civil claims, counterclaims, or cross claims
against said party are based on said party's exercise of
its right of petition under the constitution of the United
States or of the commonwealth." G. L. c. 231, §
59H. The Duracraft ...