Heard: January 8, 2019.
action commenced in the Superior Court Department on March
23, 2015. Following review by this court, 477 Mass. 162
(2017), a special motion to dismiss was heard by Joseph F.
Leighton, Jr., J.
Supreme Judicial Court granted an application for direct
E. Goloboy for the plaintiff.
S. Furman (Emily C. Shanahan also present) for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
appeal represents yet another chapter in the ongoing saga
involving these adjoining property owners. See 477
Harrison Ave., LLC v. JACE Boston, LLC, 477
Mass. 162, 163 (2017) (Harrison I). In March 2015,
after skirmishes over a period of years in a variety of
forums, the plaintiff developer filed a complaint against the
defendant abutters alleging abuse of process and violation of
G. L. c. 93A. Id. Sequential duels brandishing the
"anti-SLAPP" act, G. L. c. 231, § 59H,
followed. Harrison I concerned the abutters'
appeal from the denial of their special motion to dismiss the
developer's complaint. Harrison I,
supra. This clash, in contrast, involves the
developer's appeal from the denial of its special motion
to dismiss the abutters' amended counterclaims. These
amended counterclaims alleged breach of contract, breach of
the implied covenant of good faith and fair dealing, abuse of
process, and violation of G. L. c. 93A. We allowed the
developer's application for direct appellate review.
developer maintains on appeal that the motion judge erred in
applying the analytical framework devised in Duracraft
Corp. v. Holmes Prods. Corp., 427 Mass. 156');">427 Mass. 156
(1998) (Duracraft), and augmented in
Blanchard v. Steward Carney Hosp.,
Inc., 477 Mass. 141, 159-161 (2017) (Blanchard
I), for evaluating anti-SLAPP motions to dismiss. It
argues that the judge failed to consider the evidence at each
stage of the framework before proceeding to the next, and
ultimately in concluding that none of the abutters' four
amended counterclaims was a "strategic lawsuit against
public participation," known as a "SLAPP"
suit. See Blanchard I, supra at 157.
augmented Duracraft framework was devised to be
applied sequentially. That is to say, the moving party (i.e.,
the party bringing the special motion to dismiss, here, the
developer) must demonstrate, at the threshold stage, that the
claims filed against it (here, the amended counterclaims) are
based solely on the moving party's petitioning activity.
If the moving party (here, the developer) satisfies its
burden, then the burden shifts to the nonmoving party (here,
the abutters) to demonstrate at the second stage that the
anti-SLAPP statute, G. L. c. 231, § 59H, does not
require dismissal of its claims. The nonmoving party can do
so by establishing either that the moving party's
petitioning activity was a "sham" and that the
nonmoving party (here, the abutters) has been injured as a
result, or that its own claims are not SLAPP suits at all,
i.e., they are both colorable and nonretaliatory. See
Blanchard v. Steward Carney Hosp., Inc., 483 Mass.
200, 204 (2019) (Blanchard II).
the burden-shifting framework in this sequential manner to
the developer's anti-SLAPP motion, we conclude that none
of the abutters' contract-based counterclaims, including
any portion of the counterclaim alleging violation of G. L.
c. 93A, is colorable and, therefore, the abutters cannot
demonstrate their claims are not SLAPP suits. The
counterclaims are based on the flawed premise that an
agreement for judgment ordinarily retains independent legal
significance after a judgment has entered incorporating the
terms of the agreement. The remaining counterclaims, alleging
abuse of process and violation of G. L. c. 93A, are based
solely on the developer's legitimate petitioning
activities. Because they objectively burden the
developer's petitioning activities in this action, we
conclude that the abutters failed to demonstrate that any of
their counterclaims are not retaliatory. See Blanchard
I, 477 Mass. at 160. We vacate the order denying the
special motion to dismiss the counterclaims, and remand the
case for entry of an order allowing the motion and for
further proceedings consistent with this opinion.
of conflict have ensued since the developer purchased the
property located at 477 Harrison Avenue in December of 2011.
See Harrison I, 477 Mass. at 164-167. The abutters
repeatedly have opposed the developer's attempts to
redevelop the property in a variety of legal and
administrative venues. Id. at 165. The parties'
efforts and counterefforts were outlined previously, see
Id. at 164-167, and it serves no purpose to detail
them again here. It is enough to say that, in 2012, the
developer successfully obtained zoning relief from the zoning
board of appeal of Boston (ZBA) . Id. at 165. The
abutters challenged the ZBA's decision in the Superior
Court (2012 zoning appeal).
the 2012 zoning appeal was pending, the abutters commenced a
declaratory judgment action concerning an agreement between
prior owners of the parties' respective properties
(declaratory judgment action) . Id. at 165. After a
jury-waived trial, "a Superior Court judge ruled that
this agreement . . . precluded the [developer] from
demolishing the party wall between the two properties below
the height specified in the [agreement] ." Id.
The Appeals Court affirmed the judgment. See JACE Boston,
LLC v. Holland Dev., LLC, 89 Mass.App.Ct. 1108 (2016) .
these matters were pending, "and its redevelopment plans
thereby stalled, the [developer] opted for what it hoped
would be a faster path forward. In September, 2013, as the
parties' summary judgment motions awaited resolution in
the [2012 zoning appeal], the [developer] abandoned its
request for zoning relief, then on appeal, to pursue instead
an 'as of right project.'" Harrison I,
477 Mass. at 165. An agreement for judgment was filed in the
Superior Court memorializing the abandonment. Judgment
subsequently entered in the 2012 zoning appeal.
the developer began redeveloping the property. Even then, the
parties' conflict continued. Id. at 165-166. In
2014, the developer sought additional zoning variances and a
conditional use permit to add more units to the property.
After a hearing on March 24, 2015, the ZBA granted the
requested relief, and the abutters again appealed (2015
zoning appeal). The day before that hearing, the developer
commenced the underlying action against the abutters,
alleging abuse of process and a violation of G. L. c. 93A,
§ 11. Id. at 166. The abutters responded with a
special motion to dismiss both claims, pursuant to the
anti-SLAPP statute. Id. at 167. The judge denied the
motion, and the abutters appealed. That appeal was the
subject of Harrison I.
Harrison I was pending, the abutters moved to
dismiss the developer's (amended) complaint, pursuant to
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). According
to the developer, the abutters essentially claimed that the
agreement for judgment in the 2012 zoning appeal precluded
the developer from asserting its claims "to the extent
they relate to conduct which pre-dated the Agreement for
Judgment or to conduct or legal challenges contemplated in
it." The Superior Court judge denied the motion.
Thereafter, the abutters filed an answer and counterclaims,
which they purported to assert "conditionally"
pending the outcome of their appeal in Harrison I.
thereafter, Harrison I was decided. We concluded in
that case that the abutters' special motion to dismiss
properly was denied as to the developer's G. L. c. 93A
claim, because that claim was not based solely on the
abutters' petitioning activity, as G. L. c. 231, §
59H, requires. See Harrison I, 477 Mass. at 163.
With respect to the developer's abuse of process claim,
however, we vacated the order dismissing the claim and
remanded the case for further proceedings in light of the
augmented framework announced in Blanchard I, 477
Mass. at 159-161. See Harrison I, supra at
163-164. Following remand, the judge again denied the
abutters' special motion to dismiss the abuse of process
claim. The abutters did not appeal from that ruling. They,
instead, filed amended counterclaims expressly removing the
purportedly conditional aspect of the counterclaims.
developer parried by filing its own special motion to dismiss
the amended counterclaims, pursuant to G. L. c. 231, §
59H. The judge denied the motion, and this appeal followed.
G. L. c. 231, § 59H, a party may file a special motion
to dismiss if "the civil claims, counterclaims, or cross
claims" against it are based solely on its exercise of
the constitutional right to petition. The burden-shifting
framework devised in Duracraft, 427 Mass. 156');">427 Mass. 156, and
augmented in Blanchard I, 477 Mass. at 159-161, is
used to evaluate such motions. At the threshold stage, the
moving party (here, the developer) must demonstrate, through
pleadings and affidavits, that each claim it challenges is
based solely on its own protected petitioning activity, and
that the claim has no other substantial basis. See
Wenger v. Aceto, 451 Mass. 1, 5
(2008). If the moving party meets its burden, the burden
shifts at the second stage to the nonmoving party (here, the
abutters), to demonstrate that the anti-SLAPP statute
nonetheless does not require dismissal.
nonmoving party may satisfy its burden at the second stage in
one of two ways. See Blanchard I, 477 Mass. at
159-160. The first path, which tracks the statutory language,
requires the nonmoving party (here, the abutters) to
establish "by a preponderance of the evidence that the
[moving party, here the developer] lacked any reasonable
factual support or any arguable basis in law for its
petitioning activity," Baker v.
Parsons, 434 Mass. 543, 553-554 (2001), and that the
moving party's acts caused "actual injury to the
responding party," G. L. c. 231, § 59H. The second
path, laid out in Blanchard I, requires the
nonmoving party (here, the abutters) to establish, such that
the motion judge can conclude with fair assurance, that its
claim is not a "meritless" SLAPP suit "brought
primarily to chill the special movant's [here, the
developer's] legitimate petitioning activities."
Blanchard I, supra.
augmented Duracraft framework is intended to be
applied sequentially. See Blanchard I, 477 Mass. at
159. Beginning at the threshold stage, the motion judge
"consider[s] the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or
defense is based," and evaluates whether the party that
has the burden of proof has satisfied it. G. L. c. 231,
§ 59H. Sequential application of the framework is
especially significant for purposes of the newly augmented
second stage of the framework. By proceeding systematically,
by the time the motion judge reaches the last step, he or she
will be in a more informed position to make an assessment of
the "totality of ...