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
23-P-511
D.D.S. INDUSTRIES, INC.
vs.
LEFTFIELD LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This dispute arose from a project to renovate and construct
a high school in the city of Fall River (city). A subcontractor
on the project, D.D.S. Industries, Inc. (D.D.S.), brought a
claim for defamation against the project manager, Leftfield LLC
(Leftfield), alleging that Leftfield published false statements
about D.D.S. in a letter to the city's mayor. On Leftfield's
motion a Superior Court judge dismissed the claim under G. L.
c. 231, § 59H (commonly known as the anti-SLAPP statute), and
D.D.S. appeals. We affirm.
Background. D.D.S. was one of several contractors that
responded to a request for qualification (RFQ) for heating,
ventilation, and air conditioning work on the project. The RFQ was issued in accordance with G. L. c. 149A, § 8, which
establishes a detailed process for selecting trade contractors
to perform "sub-bid classes of work" on certain public building
projects. In brief, the process has two phases: the first
consists of scoring the responses to the RFQ and creating a list
of "prequalified" trade contractors, G. L. c. 149A, § 8 (e)-(f);
and the second consists of inviting all "prequalified" trade
contractors to submit a bid on the project, G. L. c. 149A,
§ 8 (g). D.D.S. was prequalified to bid under this process and
then, as the lowest qualified bidder, was awarded the contract.
See G. L. c. 149A, § 8 (h).
Construction on the project began at some point in 2018.
After the project encountered significant delays, the general
contractor, Suffolk Construction Company (Suffolk), sent D.D.S.
a series of notices of default, alleging that D.D.S. had failed
to complete numerous items of work in a timely and satisfactory
manner. D.D.S. responded by claiming that the delays were
caused by scheduling issues, the COVID-19 pandemic, and, mostly,
Suffolk itself.
On February 23, 2021, D.D.S.'s owner, Dwight Silvia, posted
a lengthy message in a public Facebook group called "Fall
River." The Fall River Reporter, a local newspaper, managed the
group, which at the time had over twenty thousand members. In
2 the post Silvia criticized Suffolk's management of the project,
alleging among other things that Suffolk was attempting to
"cover up" "numerous deficiencies" in the construction; that the
defective work would expose children attending the school to
health and safety issues, such as mold and inadequate fire
safety measures; and that "the Fall River taxpayer will continue
to pay" for the problems caused by Suffolk's "poor construction
practices." Silvia admitted that D.D.S. was responsible for
"some minor problems" but claimed that these did not affect
health or safety or the integrity of the building.
Leftfield received numerous telephone calls and requests
for comment from local media as a result of Silvia's post. On
February 24, 2021, Leftfield responded to the post by sending
the letter that is the subject of this case. In the letter,
addressed to the "Mayor of Fall River," Leftfield characterized
Silvia's post as "misleading" and attributed the majority of the
quality issues with the project to D.D.S. The letter went on to
describe the quality issues, both those attributable to D.D.S.
and those attributable to others, and the remedial steps taken
to resolve them. On February 26, 2021, the mayor posted the
letter on his own Facebook page.
A few months later, D.D.S. filed the underlying complaint
against Leftfield. The complaint, which D.D.S. amended once,
3 identifies the following statements in Leftfield's letter as
defamatory: D.D.S. was "responsible for most of the quality
issues" on the project; and D.D.S. was "marginally qualified" to
work on the project. After a hearing the judge allowed
Leftfield's special motion to dismiss the amended complaint
under the anti-SLAPP statute and awarded Leftfield its
attorney's fees and costs.
Discussion. The anti-SLAPP statute "provides a procedural
remedy -- the special motion to dismiss -- for early dismissal
of SLAPP suits, i.e., 'lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances.'" Nyberg v.
Wheltle, 101 Mass. App. Ct. 639, 645 (2022), quoting Blanchard
v. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017). A
special motion to dismiss under the anti-SLAPP statute is
evaluated under a two-stage, burden-shifting test. First, the
moving party must demonstrate "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."
Bristol Asphalt Co. v. Rochester Bituminous Prods., Inc., 493
Mass. 539, 555 (2024), quoting Duracraft Corp. v. Holmes Prods.
Corp., 427 Mass. 156, 167-168 (1998). Second, if the moving
4 party makes that showing, the burden shifts to the special
motion opponent to demonstrate that the moving party's "exercise
of its right of petition 'was devoid of any reasonable factual
support or any arguable basis in law' and . . . 'caused actual
injury to the [special motion opponent].'" Bristol Asphalt Co.,
supra at 557, quoting G. L. c. 231, § 59H.1 Our review of a
judge's decision on a special motion to dismiss is de novo.
Bristol Asphalt Co., supra at 560.
1. First stage. "'[P]etitioning' has been consistently
defined to encompass a 'very broad' range of activities in the
context of the anti-SLAPP statute." North Am. Expositions Co.
Ltd. Partnership v. Corcoran, 452 Mass. 852, 861 (2009), quoting
Duracraft, 427 Mass. at 162. These activities include "any
written or oral statement made before or submitted to a
legislative, executive, or judicial body, or any other
governmental proceeding" and "any written or oral statement made
in connection with an issue under consideration or review by a
governmental proceeding." G. L. c. 231, § 59H. "[A]ll
1 In Bristol Asphalt Co., 493 Mass. at 553, which was decided while this appeal was pending, the court eliminated the so-called "second path" of the second stage, which had provided an alternative means by which an opponent could defeat a special motion. D.D.S.'s opposition to Leftfield's motion did not, in any event, seek to rely on the second path.
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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
23-P-511
D.D.S. INDUSTRIES, INC.
vs.
LEFTFIELD LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This dispute arose from a project to renovate and construct
a high school in the city of Fall River (city). A subcontractor
on the project, D.D.S. Industries, Inc. (D.D.S.), brought a
claim for defamation against the project manager, Leftfield LLC
(Leftfield), alleging that Leftfield published false statements
about D.D.S. in a letter to the city's mayor. On Leftfield's
motion a Superior Court judge dismissed the claim under G. L.
c. 231, § 59H (commonly known as the anti-SLAPP statute), and
D.D.S. appeals. We affirm.
Background. D.D.S. was one of several contractors that
responded to a request for qualification (RFQ) for heating,
ventilation, and air conditioning work on the project. The RFQ was issued in accordance with G. L. c. 149A, § 8, which
establishes a detailed process for selecting trade contractors
to perform "sub-bid classes of work" on certain public building
projects. In brief, the process has two phases: the first
consists of scoring the responses to the RFQ and creating a list
of "prequalified" trade contractors, G. L. c. 149A, § 8 (e)-(f);
and the second consists of inviting all "prequalified" trade
contractors to submit a bid on the project, G. L. c. 149A,
§ 8 (g). D.D.S. was prequalified to bid under this process and
then, as the lowest qualified bidder, was awarded the contract.
See G. L. c. 149A, § 8 (h).
Construction on the project began at some point in 2018.
After the project encountered significant delays, the general
contractor, Suffolk Construction Company (Suffolk), sent D.D.S.
a series of notices of default, alleging that D.D.S. had failed
to complete numerous items of work in a timely and satisfactory
manner. D.D.S. responded by claiming that the delays were
caused by scheduling issues, the COVID-19 pandemic, and, mostly,
Suffolk itself.
On February 23, 2021, D.D.S.'s owner, Dwight Silvia, posted
a lengthy message in a public Facebook group called "Fall
River." The Fall River Reporter, a local newspaper, managed the
group, which at the time had over twenty thousand members. In
2 the post Silvia criticized Suffolk's management of the project,
alleging among other things that Suffolk was attempting to
"cover up" "numerous deficiencies" in the construction; that the
defective work would expose children attending the school to
health and safety issues, such as mold and inadequate fire
safety measures; and that "the Fall River taxpayer will continue
to pay" for the problems caused by Suffolk's "poor construction
practices." Silvia admitted that D.D.S. was responsible for
"some minor problems" but claimed that these did not affect
health or safety or the integrity of the building.
Leftfield received numerous telephone calls and requests
for comment from local media as a result of Silvia's post. On
February 24, 2021, Leftfield responded to the post by sending
the letter that is the subject of this case. In the letter,
addressed to the "Mayor of Fall River," Leftfield characterized
Silvia's post as "misleading" and attributed the majority of the
quality issues with the project to D.D.S. The letter went on to
describe the quality issues, both those attributable to D.D.S.
and those attributable to others, and the remedial steps taken
to resolve them. On February 26, 2021, the mayor posted the
letter on his own Facebook page.
A few months later, D.D.S. filed the underlying complaint
against Leftfield. The complaint, which D.D.S. amended once,
3 identifies the following statements in Leftfield's letter as
defamatory: D.D.S. was "responsible for most of the quality
issues" on the project; and D.D.S. was "marginally qualified" to
work on the project. After a hearing the judge allowed
Leftfield's special motion to dismiss the amended complaint
under the anti-SLAPP statute and awarded Leftfield its
attorney's fees and costs.
Discussion. The anti-SLAPP statute "provides a procedural
remedy -- the special motion to dismiss -- for early dismissal
of SLAPP suits, i.e., 'lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances.'" Nyberg v.
Wheltle, 101 Mass. App. Ct. 639, 645 (2022), quoting Blanchard
v. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017). A
special motion to dismiss under the anti-SLAPP statute is
evaluated under a two-stage, burden-shifting test. First, the
moving party must demonstrate "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."
Bristol Asphalt Co. v. Rochester Bituminous Prods., Inc., 493
Mass. 539, 555 (2024), quoting Duracraft Corp. v. Holmes Prods.
Corp., 427 Mass. 156, 167-168 (1998). Second, if the moving
4 party makes that showing, the burden shifts to the special
motion opponent to demonstrate that the moving party's "exercise
of its right of petition 'was devoid of any reasonable factual
support or any arguable basis in law' and . . . 'caused actual
injury to the [special motion opponent].'" Bristol Asphalt Co.,
supra at 557, quoting G. L. c. 231, § 59H.1 Our review of a
judge's decision on a special motion to dismiss is de novo.
Bristol Asphalt Co., supra at 560.
1. First stage. "'[P]etitioning' has been consistently
defined to encompass a 'very broad' range of activities in the
context of the anti-SLAPP statute." North Am. Expositions Co.
Ltd. Partnership v. Corcoran, 452 Mass. 852, 861 (2009), quoting
Duracraft, 427 Mass. at 162. These activities include "any
written or oral statement made before or submitted to a
legislative, executive, or judicial body, or any other
governmental proceeding" and "any written or oral statement made
in connection with an issue under consideration or review by a
governmental proceeding." G. L. c. 231, § 59H. "[A]ll
1 In Bristol Asphalt Co., 493 Mass. at 553, which was decided while this appeal was pending, the court eliminated the so-called "second path" of the second stage, which had provided an alternative means by which an opponent could defeat a special motion. D.D.S.'s opposition to Leftfield's motion did not, in any event, seek to rely on the second path.
5 statements made to influence, inform, or at the very least,
reach governmental bodies -- either directly or indirectly"
qualify as petitioning (quotations omitted). North Am.
Expositions Co. Ltd. Partnership, supra at 862.
Here, the sole basis of D.D.S.'s defamation claim is the
letter that Leftfield sent to the city's mayor. That letter
constituted petitioning because it was a statement submitted to
a representative of an executive body to inform him of issues
related to an ongoing public construction project. See North
Am. Expositions Co. Ltd. Partnership, 452 Mass. at 862; Office
One, Inc. v. Lopez, 437 Mass. 113, 122-123 (2002). D.D.S.'s
conclusory assertion that Leftfield wrote the letter not to seek
redress for a grievance, but "in clear retaliation for D.D.S.'s
Facebook post," does not take the letter outside the scope of
petitioning. See Bristol Asphalt Co., 493 Mass. at 563
("neither a special motion proponent's identity, nor the motive
behind its decision to engage in petitioning activity . . . , is
relevant to the threshold inquiry"); Baker v. Parsons, 434 Mass.
543, 551 (2001) ("showing by the defendants that the claims
against them were based on their petitioning activities alone
[was] not defeated by the plaintiff's conclusory assertion that
'certain statements made by the defendants [in petitions to
government officials] constitute[d] defamation'").
6 We are also unpersuaded by D.D.S.'s argument that the
letter was not petitioning because Leftfield had no connection
to the city beyond "a contractual relationship." As an initial
matter, D.D.S. waived this argument by failing to raise it to
the judge. See Carey v. New England Organ Bank, 446 Mass. 270,
285 (2006). And in any event, the case on which D.D.S. relies,
Kobrin v. Gastfriend, 443 Mass. 327 (2005), does not support its
position. There, the court held that the special movant, a
physician who was retained by a licensure board to act as its
expert witness, was not engaged in petitioning when he produced
an expert opinion pursuant to his contract with the board. See
id. at 333, 337-338. Kobrin "rest[s] on the commonsense
principle that a statute designed to protect the constitutional
right to petition has no applicability to situations in which
the government petitions itself." Keegan v. Pellerin, 76 Mass.
App. Ct. 186, 192 (2010). See Cardno ChemRisk, LLC v. Foytlin,
476 Mass. 479, 490 (2017) (special movant in Kobrin not engaged
in petitioning because he "spoke in the capacity of . . . a
contracted government expert witness"). Here, Leftfield was
exercising its own right to petition; it was not speaking on
behalf of the government. Kobrin does not apply in these
circumstances.
7 2. Second stage. Because Leftfield met its burden at the
first stage, the burden shifted to D.D.S. to show both that
Leftfield's letter "was devoid of any reasonable factual support
or any arguable basis in law" and that it caused "actual injury"
to D.D.S. Bristol Asphalt Co., 493 Mass. at 557, quoting G. L.
c. 231, § 59H. "[P]roving petitioning is 'devoid' of any
reasonable factual support or any arguable basis in law is a
difficult task," Bristol Asphalt Co., supra, akin to proving
frivolousness, see id. at 559-560. We conclude that D.D.S.
failed to meet this burden and thus need not decide whether it
has shown actual injury.
As mentioned, D.D.S.'s complaint identifies two statements
in the letter as defamatory. The first -- that D.D.S. was
"responsible for most of the quality issues" on the project --
was not devoid of reasonable factual support (and does not
implicate any law). The letter goes on to describe in detail
the quality issues attributable to D.D.S. The description in
the letter is supported by the exhibits that Leftfield submitted
with its special motion, including the notices of default that
Suffolk sent to D.D.S. and a "Punch List" dated August 26, 2021,
identifying over 300 open items left for D.D.S. to remedy or
complete. In response to the special motion, D.D.S. submitted a
single affidavit from Silvia in which he summarily asserted that
8 "D.D.S. was not responsible for the majority of the Project's
issues, but rather the issues on the Project arose from
Suffolk's deficiencies and delays." This was insufficient to
show that Leftfield's petitioning lacked any reasonable factual
support. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 477
Mass. 162, 173 (2017) (special motion opponent "cannot meet its
burden merely by presenting affidavits contradicting the factual
basis of the special movant's petitioning activities").
The second statement identified as defamatory -- that
D.D.S. was only "marginally qualified" to work on the project --
was also not devoid of reasonable factual support or an arguable
basis in law. Under G. L. c. 149A, § 8 (f), "[a]ll trade
contractors who achieve a score of 70 points or greater [based
on their responses to the RFQ] shall be prequalified to submit a
bid." It is undisputed that D.D.S. scored a 74.8 in the
prequalification process. In comparison, the other companies
that responded to the RFQ achieved scores ranging between 83.8
and 90.2. This supports Leftfield's characterization of D.D.S.
as "marginally qualified."2
2 D.D.S. argues otherwise on the ground that a trade contractor's prequalification score is not a public record. That is irrelevant to whether Leftfield's petitioning is devoid of a reasonable basis in fact or law.
9 On appeal D.D.S. asserts that Leftfield's letter contains
the additional false statement that D.D.S. "was kept on the List
of Bidders because they are a Fall River-based company." This
statement is not identified in the complaint, however. Thus, it
is not a basis of the defamation claim, see Kelleher v. Lowell
Gen. Hosp., 98 Mass. App. Ct. 49, 53 n.2 (2020), or, in turn, a
basis on which D.D.S. can meet its burden under the anti-SLAPP
test. See Bristol Asphalt Co., 493 Mass. at 558 n.18 ("mere
existence of an isolated 'untrue' or 'misleading' statement
would not, in and of itself, mean that the petitioning activity
was devoid of any reasonable factual support or arguable basis
in law"). Moreover, even had D.D.S. adequately pleaded the
claim, we agree with Leftfield that the statement in the letter
can arguably be construed to be referring to the fact that
D.D.S.'s local references earned it the minimum number of points
required for prequalification. On D.D.S.'s evaluation form, the
reviewer noted: "Meets minimum points but had to call 4
references to hit minimum in all categories. Similar experience
and ability to do job as large as [the project] should be
discussed." One of D.D.S.'s references was from a project in
Fall River, and at least two others were from projects in the
same county. The evaluation therefore provides colorable
10 support for Leftfield's statement. See Bristol Asphalt Co.,
supra at 559-560.
3. Appellate fees. Leftfield has requested an award of
its appellate attorney's fees and costs. It is entitled to such
an award. See O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 501
(2017). Accordingly, within fourteen days of the date of this
decision, Leftfield may file an application for fees and costs.
The application shall be limited to those fees and costs
incurred in defending this appeal and shall not include any fees
or costs associated with postjudgment discovery efforts. D.D.S.
may have fourteen days to respond. See Fabre v. Walton, 441
Mass. 9, 10-11 (2004).
Judgment affirmed.
By the Court (Shin, Ditkoff & Brennan, JJ.3),
Clerk
Entered: November 12, 2024.
3 The panelists are listed in order of seniority.