NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-1071
CASH ENERGY CONDOMINIUM ASSOCIATION
vs.
MARTHA A. CASHINS & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, owners of condominium units in a two-story
office building in North Andover, appeal from an order of the
Superior Court denying the defendants' motion to dismiss under
the anti-SLAPP statute, G. L. c. 231, § 59H. Concluding that
the defendants failed to establish that the plaintiff's claims
concerning the defendants' communications with the Architectural
Access Board (board) had no substantial basis other than
petitioning activity, we affirm.
1Stephen A. Sakakeeny, Edward A. Rainen, Ralph A. Barbagallo, Jr., Rosemarie A. Connolly, Nicholas J. Giacoumakis, and the Architectural Access Board (board). After oral argument in this court, the Superior Court entered judgment on the pleadings in favor of the board on the plaintiff's claim against the board. That claim and ruling is not at issue in this appeal. 1. Standard of review. "[A] ruling on a special motion to
dismiss is subject to de novo review on appeal." Columbia Plaza
Assocs. v. Northeastern Univ., 493 Mass. 570, 577 (2024). We
evaluate a special motion to dismiss in two stages. Bristol
Asphalt Co. v. Rochester Bituminous Prods., Inc., 493 Mass. 539,
555-557 (2024). First, "a proponent of a special motion to
dismiss under § 59H must 'make a threshold showing through the
pleadings and affidavits that the claims against it are "based
on" the [party's] petitioning activities alone and have no
substantial basis other than or in addition to the petitioning
activities.'" Id. at 555, quoting Duracraft Corp. v. Holmes
Prods. Corp., 427 Mass. 156, 167-168 (1998). "The sufficiency
of the special motion proponent's threshold showing [is] to be
evaluated count by count." Bristol Asphalt Co., supra at 551.
If this threshold showing is made, "the statute requires
allowance of the special motion to dismiss, 'unless the [special
motion opponent] shows' that the special motion proponent's
exercise of its right of petition '[(1)] was devoid of any
reasonable factual support or any arguable basis in law' and
(2) 'caused actual injury to the [special motion opponent].'"
Id. at 557, quoting G. L. c. 231, § 59H.
2. Petitioning activity. "To fall under the 'in
connection with' definition of petitioning under the anti-SLAPP
statute, a communication must be 'made to influence, inform, or
2 at the very least, reach governmental bodies -- either directly
or indirectly.'" Blanchard v. Steward Carney Hosp, Inc., 477
Mass. 141, 149 (2017), S.C., 483 Mass. 200 (2019), overruled on
other grounds by Bristol Asphalt Co., 493 Mass. at 551-554,
quoting North Am. Expositions Co. Ltd. Partnership v. Corcoran,
452 Mass. 852, 862 (2009). Here, the communications at issue
concerned the proposed installation of an elevator in the two-
story office building in which the defendants own condominium
units. In 2021, the defendants, who are second-floor owners,
requested advice from and eventually filed a complaint with the
board, claiming that improvements to the property between 2002
and 2004 required the installation of an elevator pursuant to
the board's regulations.2 See J.M. Hollister, LLC v.
Architectural Access Bd., 469 Mass. 49, 50-51 (2014). As the
board is a government agency, the defendants' actions in seeking
review by the board constituted petitioning activity. See North
Am. Expositions Co. Ltd. Partnership, supra at 861-862.
The plaintiff contends that there exists a substantial
basis other than the petitioning activity supporting each count
in the complaint. The relevant counts in the complaint alleged
2 General Laws c. 22, § 13A, established the board under the Office of Public Safety and Inspections and mandates that the board "make and from time to time alter, amend, and repeal, . . . rules and regulations designed to make public buildings accessible to, functional for, and safe for use by persons with a physical disability."
3 that the defendants "breached the terms of the master deed,"
"circumvent[ed] the explicit terms of the master deed," and also
"conceal[ed] their actions."3
According to the complaint, the master deed requires that,
"[i]f 50% or more, but less than 75%, of the unit owners agree
to make an improvement, the cost of such improvement shall be
borne solely by the unit owners so agreeing." The plaintiff
alleges that, instead of abiding by this contractual
arrangement, the defendants "push[ed] for an elevator outside
the process established in the master deed," and "purposefully
concealed their agreement [to seek installation of the elevator]
from the condominium association to avoid the obligations
imposed by . . . section VII of the master deed." The plaintiff
asserts that the defendants were "concerned only with forcing
the condominium association to install an elevator and assess
the cost as a common expense to all unit owners."
3 The counts included (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) breach of fiduciary duties to the condominium association, (4) breach of fiduciary duties to fellow unit owners, and (5) civil conspiracy. Although a court must evaluate a party's claims separately to determine whether each count has a substantial basis other than petitioning activity, see Bristol Asphalt Co., 493 Mass. at 551, 553-554, the counts here each derive from the same overarching claim that the defendants violated the master deed. The different counts merely advance different theories of recovery based on the same conduct. To avoid needless repetition, then, we do not address each count in turn.
4 The plaintiff's claims were "in response to" -- not solely
based on -- the defendants' petitioning activity. See Keystone
Freight Corp. v. Bartlett Consol., Inc., 77 Mass. App. Ct. 304,
316 (2010) (claim "also is predicated on [defendant's]
administrative misconduct prior to and subsequent to filing the
collection action"). Underlying each count was "the existence
of [a] contractual agreement[] between the parties." Columbia
Plaza, Assocs., 493 Mass. at 578. See 477 Harrison Ave., LLC v.
JACE Boston, LLC, 483 Mass. 514, 520 (2019) ("a claim for breach
of contract [or breach of the implied covenant of good faith and
fair dealing] sometimes may present a substantial basis other
than the petitioning activity itself for purposes of the anti-
SLAPP act"). Indeed, "the alleged conduct that gave rise to
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-1071
CASH ENERGY CONDOMINIUM ASSOCIATION
vs.
MARTHA A. CASHINS & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, owners of condominium units in a two-story
office building in North Andover, appeal from an order of the
Superior Court denying the defendants' motion to dismiss under
the anti-SLAPP statute, G. L. c. 231, § 59H. Concluding that
the defendants failed to establish that the plaintiff's claims
concerning the defendants' communications with the Architectural
Access Board (board) had no substantial basis other than
petitioning activity, we affirm.
1Stephen A. Sakakeeny, Edward A. Rainen, Ralph A. Barbagallo, Jr., Rosemarie A. Connolly, Nicholas J. Giacoumakis, and the Architectural Access Board (board). After oral argument in this court, the Superior Court entered judgment on the pleadings in favor of the board on the plaintiff's claim against the board. That claim and ruling is not at issue in this appeal. 1. Standard of review. "[A] ruling on a special motion to
dismiss is subject to de novo review on appeal." Columbia Plaza
Assocs. v. Northeastern Univ., 493 Mass. 570, 577 (2024). We
evaluate a special motion to dismiss in two stages. Bristol
Asphalt Co. v. Rochester Bituminous Prods., Inc., 493 Mass. 539,
555-557 (2024). First, "a proponent of a special motion to
dismiss under § 59H must 'make a threshold showing through the
pleadings and affidavits that the claims against it are "based
on" the [party's] petitioning activities alone and have no
substantial basis other than or in addition to the petitioning
activities.'" Id. at 555, quoting Duracraft Corp. v. Holmes
Prods. Corp., 427 Mass. 156, 167-168 (1998). "The sufficiency
of the special motion proponent's threshold showing [is] to be
evaluated count by count." Bristol Asphalt Co., supra at 551.
If this threshold showing is made, "the statute requires
allowance of the special motion to dismiss, 'unless the [special
motion opponent] shows' that the special motion proponent's
exercise of its right of petition '[(1)] was devoid of any
reasonable factual support or any arguable basis in law' and
(2) 'caused actual injury to the [special motion opponent].'"
Id. at 557, quoting G. L. c. 231, § 59H.
2. Petitioning activity. "To fall under the 'in
connection with' definition of petitioning under the anti-SLAPP
statute, a communication must be 'made to influence, inform, or
2 at the very least, reach governmental bodies -- either directly
or indirectly.'" Blanchard v. Steward Carney Hosp, Inc., 477
Mass. 141, 149 (2017), S.C., 483 Mass. 200 (2019), overruled on
other grounds by Bristol Asphalt Co., 493 Mass. at 551-554,
quoting North Am. Expositions Co. Ltd. Partnership v. Corcoran,
452 Mass. 852, 862 (2009). Here, the communications at issue
concerned the proposed installation of an elevator in the two-
story office building in which the defendants own condominium
units. In 2021, the defendants, who are second-floor owners,
requested advice from and eventually filed a complaint with the
board, claiming that improvements to the property between 2002
and 2004 required the installation of an elevator pursuant to
the board's regulations.2 See J.M. Hollister, LLC v.
Architectural Access Bd., 469 Mass. 49, 50-51 (2014). As the
board is a government agency, the defendants' actions in seeking
review by the board constituted petitioning activity. See North
Am. Expositions Co. Ltd. Partnership, supra at 861-862.
The plaintiff contends that there exists a substantial
basis other than the petitioning activity supporting each count
in the complaint. The relevant counts in the complaint alleged
2 General Laws c. 22, § 13A, established the board under the Office of Public Safety and Inspections and mandates that the board "make and from time to time alter, amend, and repeal, . . . rules and regulations designed to make public buildings accessible to, functional for, and safe for use by persons with a physical disability."
3 that the defendants "breached the terms of the master deed,"
"circumvent[ed] the explicit terms of the master deed," and also
"conceal[ed] their actions."3
According to the complaint, the master deed requires that,
"[i]f 50% or more, but less than 75%, of the unit owners agree
to make an improvement, the cost of such improvement shall be
borne solely by the unit owners so agreeing." The plaintiff
alleges that, instead of abiding by this contractual
arrangement, the defendants "push[ed] for an elevator outside
the process established in the master deed," and "purposefully
concealed their agreement [to seek installation of the elevator]
from the condominium association to avoid the obligations
imposed by . . . section VII of the master deed." The plaintiff
asserts that the defendants were "concerned only with forcing
the condominium association to install an elevator and assess
the cost as a common expense to all unit owners."
3 The counts included (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) breach of fiduciary duties to the condominium association, (4) breach of fiduciary duties to fellow unit owners, and (5) civil conspiracy. Although a court must evaluate a party's claims separately to determine whether each count has a substantial basis other than petitioning activity, see Bristol Asphalt Co., 493 Mass. at 551, 553-554, the counts here each derive from the same overarching claim that the defendants violated the master deed. The different counts merely advance different theories of recovery based on the same conduct. To avoid needless repetition, then, we do not address each count in turn.
4 The plaintiff's claims were "in response to" -- not solely
based on -- the defendants' petitioning activity. See Keystone
Freight Corp. v. Bartlett Consol., Inc., 77 Mass. App. Ct. 304,
316 (2010) (claim "also is predicated on [defendant's]
administrative misconduct prior to and subsequent to filing the
collection action"). Underlying each count was "the existence
of [a] contractual agreement[] between the parties." Columbia
Plaza, Assocs., 493 Mass. at 578. See 477 Harrison Ave., LLC v.
JACE Boston, LLC, 483 Mass. 514, 520 (2019) ("a claim for breach
of contract [or breach of the implied covenant of good faith and
fair dealing] sometimes may present a substantial basis other
than the petitioning activity itself for purposes of the anti-
SLAPP act"). Indeed, "the alleged conduct that gave rise to
[the plaintiff's] claims sounding in contract was [the
defendants'] decision to enter into agreements with [the
plaintiff], and then act in violation of [the plaintiff's]
alleged rights under those agreements." Columbia Plaza Assocs.,
supra at 578-579. Given that the claims are based in
substantial part (if not entirely) on the alleged breach of the
master deed, the defendants have not met their threshold
showing.
To this, the defendants renew their argument in the
Superior Court that "[t]he individual claims against the
Defendants would not exist but for [the plaintiffs'] petitioning
5 the [board]" and that "the complained of acts of the Defendants
all relate to petitioning the [board] to order installation of
an elevator in their building." Be that as it may, the Supreme
Judicial Court case law does not imagine, or permit, a but-for
standard. Bristol Asphalt Co., 493 Mass. at 555-557. In
clarifying the appropriate framework, the Supreme Judicial Court
noted that, "to survive [the] first stage, the proponent must
show that the challenged count has no substantial basis in
conduct other than or in addition to the special motion
proponent's alleged petitioning activity." Id. at 555-556.
That is the standard we must apply and, under that standard, the
defendants' motion fails.4
Order denying the defendants' special motion to dismiss affirmed.
By the Court (Ditkoff, Grant & Allen, JJ.5),
Clerk
Entered: July 21, 2026.
4 We deny the plaintiff's request for appellate attorney's fees. "Although the [defendants'] arguments are unpersuasive, they are not frivolous." Suwwan de Felipe v. El-Youssef Suwwan, 106 Mass. App. Ct. 158, 169 n.6 (2025).
5 The panelists are listed in order of seniority.