Opinion
16-P-311
01-17-2017
S&S LUMBER, INC. v. May SUN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brings this interlocutory appeal from the denial of its special motion to dismiss the counterclaims of defendant May Sun, individually and as trustee of the Willow Somerville Realty Trust, pursuant to the "anti-SLAPP" statute, G. L. c. 231 § 59H. The underlying suit concerns the payment (or nonpayment) for building supplies. Because the plaintiff has failed to demonstrate that the judge abused his discretion or made other error of law and the record demonstrates that the counterclaims were not based solely on petitioning activity, we affirm.
The plaintiff has failed to include a copy of the motion transcript in the record. That failure, combined with the fact that the motion judge did not provide a written explanation of his reasoning in denying the motion, precludes our knowing the basis for the judge's decision. On that basis alone, the plaintiff's appeal could be denied. However, as a matter of our discretion, we have considered the merits of the arguments raised and have carefully reviewed the record as provided. On that basis, we have concluded that the judge's decision to deny the special motion to dismiss was within his discretion.
The anti-SLAPP statute, G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1, provides that "[i]n any case in which a party asserts that 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, said party may bring a special motion to dismiss." A two-part analysis applies to such special motions. First, "the moving party must make a threshold showing, based on the pleadings and affidavits, that the claims against [the moving party] are based solely on protected petitioning activities and that the claims have no substantial basis other than, or in addition to, petitioning activities." Burley v. Comets Community Youth Center, Inc ., 75 Mass. App. Ct. 818, 821 (2009). Second, "[o]nce the moving party makes [the threshold] showing, the burden shifts to the nonmoving party to prove, by a preponderance of the evidence, that ‘(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party.’ " Ibid ., quoting from MacDonald v. Paton , 57 Mass. App. Ct. 290, 292 (2003). "[T]he anti-SLAPP inquiry produces an all or nothing result as to each count the complaint [, counterclaim, or cross claim] contains. Either the count survives the inquiry or it does not, and the statute does not create a process for parsing counts to segregate components that can proceed from those that cannot." Burley , supra .
"In assessing whether the moving party has met his or her threshold burden, the question for the judge remains only the nature of the conduct alleged by the plaintiff (is it, or is it not, protected petitioning activity) and not the merits of the case." Id . at 822. See Duracraft Corp . v. Holmes Prods. Corp ., 427 Mass. 156, 167-168 (1998). "We review an appeal from a judge's decision on a special motion to dismiss under the anti-SLAPP statute to determine whether there was an abuse of discretion or an error of law." Burley , supra at 821.
Here, the plaintiff's special motion to dismiss fails at the first step of the analysis because the plaintiff failed to demonstrate that the defendants' counterclaims were based solely on petitioning activity. At least five of the defendants' seven counterclaims explicitly reference nonpetitioning activity, namely prelitigation communications from the plaintiff to the defendants demanding payment for alleged services rendered. Indeed, many of the defendants' counterclaims are based, at least in part, on electronic mail messages between the parties or their counsel that were not "intended to influence, inform, or reach, directly or indirectly, governmental agencies." Blanchard v. Stewart Carney Hosp., Inc ., 89 Mass. App. Ct. 97, 111 (2016). We have previously determined that such prelitigation correspondence between private parties concerning their dispute does not constitute petitioning activity within the meaning of the statute. See Kalter v. Wood , 67 Mass. App. Ct. 584, 585, 591 (2006).
Concluding as we do, we need not (and do not) reach the second step of the analysis. However, we note that, based on the record, the judge could have concluded within his discretion that the plaintiff's underlying claim was devoid of any reasonable factual support or any arguable basis in law.
We note that the plaintiff's argument, raised for the first time in its reply brief, that the defendants' counsel has a conflict is waived. See Alliance to Protect Nantucket Sound, Inc . v. Energy Facilities Siting Bd ., 457 Mass. 663, 688 (2010) (claim deemed waived when raised for first time in reply brief).
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We deny the parties' respective requests for attorney's fees, and the plaintiff's request for costs.
Order denying special motion to dismiss affirmed .