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16-P-817 Appeals Court
JAMES DEVER vs. DAVID L. WARD & others.1
No. 16-P-817.
Plymouth. May 3, 2017. - September 7, 2017.
Present: Green, Massing, & Shin, JJ.
"Anti-SLAPP" Statute. Constitutional Law, Right to petition government, Retroactivity of judicial holding. Practice, Civil, Motion to dismiss. Abuse of Process.
Civil action commenced in the Superior Court Department on June 9, 2015.
A special motion to dismiss was heard by Raffi N. Yessayan, J.
Thomas A. Dougherty, III, for the plaintiff. Curtis B. Dooling for Aaron Foley & others. Timothy M. Pomarole for David L. Ward & others.
MASSING, J. The plaintiff, James Dever, appeals from an
order allowing the defendants' special motion to dismiss his
amended complaint under the "anti-SLAPP" statute. See G. L.
1 Daniel Rabinovitz; Michaels, Ward & Rabinovitz, LLP; Daniel Michael Joyce; Moors & Cabot Investments, Inc.; and Aaron Foley. 2
c. 231, § 59H, inserted by St. 1994, c. 283, § 1. Although we
conclude that the Superior Court judge did not err or abuse his
discretion in allowing the special motion, we remand the case
for further proceedings under the "augmented" framework for
evaluating § 59H motions set out in Blanchard v. Steward Carney
Hosp., 477 Mass. 141, 159-161 (2017) (Blanchard).
Background. We recite the facts as alleged in the
plaintiff's amended complaint, supplemented by the affidavits
and exhibits submitted by the parties in connection with the
defendants' special motion to dismiss. See G. L. c. 231, § 59H
(in determining whether to grant special motion to dismiss, "the
court shall consider the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense
is based").2
Dever was employed as a broker supervisor by defendant
Moors & Cabot Investments, Inc. (M&C), a securities and
financial planning firm. In early November, 2011, Dever was
involved in a dispute with M&C and its president, defendant
Daniel Joyce, over $2 million that Dever claimed was owed to him
in salary and commissions. Around the same time, Dever learned
2 The defendants' affidavit of counsel properly authenticated several documents concerning the allegations in Dever's complaint. We reject Dever's assertion that the affidavit was somehow deficient, and in any event, Dever waived any such claim by failing to object to the affidavit during proceedings on the special motion. See Miller v. Miller, 448 Mass. 320, 326 (2007). 3
that one of M&C's employees, defendant Aaron Foley, was engaging
in improper stock sales, and he reported Foley's conduct to
Joyce. Shortly thereafter, on November 9, 2011, M&C fired
Dever. In response, Dever filed a claim for arbitration against
M&C and Joyce before the Financial Industry Regulatory Authority
(FINRA), alleging breach of contract and wrongful termination.
In July, 2012, while the arbitration was pending, Joyce,
Foley, and M&C's office manager reported to the Boston police
that Dever had made between sixteen and nineteen threatening and
harassing telephone calls to them at M&C's Boston office and on
their personal cellular telephones. Joyce claimed that Dever
had threatened to harm Joyce's family, the office manager said
that Dever harassed and cursed him, and Foley reported that
Dever had made a profanity-laced death threat.
As a result of these reports, two criminal complaints
against Dever issued out of the Boston Municipal Court
Department (BMC), charging him with making annoying telephone
calls, see G. L. c. 269, § 14A, and threatening to commit a
crime, see G. L. c. 275, § 2. The BMC also issued harassment
prevention orders against Dever under G. L. c. 258E, ordering
him not to contact or abuse Joyce or the office manager and to
stay away from their residences and from M&C's Boston office.
Issued ex parte on July 12, 2012, the harassment prevention
orders were extended for one year on July 23, 2012. On August 4
13, 2012, Joyce and the office manager moved to voluntarily
dismiss the harassment prevention orders "solely because of the
jurisdictional issue" -- neither man resided in Suffolk County3 -
- and the orders were terminated.
In addition, Foley reported Dever's threats to the Hanover
police department, applied for a criminal complaint in the
Hingham Division of the District Court Department (District
Court), and obtained an ex parte harassment prevention order.
When the Hanover police contacted Dever about making these calls
to Foley, Dever said that he remembered making the calls but did
not remember making any threats. He claimed that he had been
taking prescription medication for an injury and that his memory
was cloudy as a result. The application for a criminal
complaint was denied after a magistrate's hearing.
Dever moved to dismiss the BMC criminal complaints prior to
arraignment for lack of jurisdiction. In his motion, Dever
argued that although some of the phone calls were made to M&C's
Boston office, "Joyce testified that he received the call from
. . . Dever in the driveway of his home . . . in Marshfield." A
BMC judge allowed the motion to dismiss on October 28, 2013.
3 Although Joyce and the office manager worked in Boston, an application for a harassment prevention order must be brought in the jurisdiction where the applicant resides. See G. L. c. 258E, § 2. 5
Finally, Dever alleged that during the course of the FINRA
arbitration the defendants, through pleadings and other
communications, conveyed to the arbitrators information about
Dever's threatening and harassing conduct, including copies of
the criminal complaints and harassment prevention orders. The
defendants communicated this information "with the sole intent
of disparaging [p]laintiff and prejudicing him in the eyes of
the three member arbitrator panel." According to Dever, these
efforts were successful, causing the FINRA arbitrators to deny
Dever's claims against the defendants, which he valued at $2.5
million, and instead to award $75,000 to Foley.
Defeated in the FINRA arbitration, Dever filed the current
lawsuit in the Superior Court, naming M&C, Joyce, Foley, and
their attorneys4 as defendants. Dever's amended complaint
alleged twelve counts against some or all of the defendants:
civil conspiracy, fraud, defamation, libel, two counts of abuse
of process, two counts of malicious prosecution, and four counts
of intentional or negligent infliction of emotional distress.
All of these claims were based primarily on the defendants'
reporting of Dever's alleged criminal behavior to the Boston and
Hanover police; seeking criminal complaints and harassment
4 Dever alleged that the attorneys, defendants Ward, Rabinovitz, and their law firm, assisted Joyce and Foley in seeking and obtaining criminal and civil process and spread these matters before the FINRA arbitrators. 6
prevention orders in the BMC and the District Court; and
"referring to and repeatedly bringing up" Dever's alleged
threatening and harassing conduct, and making other disparaging
comments about him, during the course of the FINRA arbitration.5
The defendants filed a special motion to dismiss Dever's
suit under the anti-SLAPP statute. The motion judge determined
that the defendants' communications to the police, the courts,
and the FINRA arbitrators were petitioning activities, and that
they were reasonably supported in law and fact. Dever appeals,
arguing that the defendants' petitioning activity was
"illegitimate" because it was "designed to intimidate, harass,
annoy and influence pending civil matters." We affirm the
allowance of the motion, but remand for further proceedings in
light of Blanchard, 477 Mass. at 159-160.
Discussion. 1. The Duracraft framework. "The special
motion procedure employs a two-stage framework." Cardno
ChemRisk, LLC v. Foytlin, 476 Mass. 479, 484 (2017). First, the
moving party must "make a threshold showing through the
pleadings and affidavits that the claims against it are 'based
on' the petitioning activities alone and have no substantial
basis other than or in addition to the petitioning activities."
5 Dever also alleged that after the magistrate's hearing in District Court, Foley's attorney, Rabinovitz, "took a boxing pose and stated [to Dever's attorney] 'drop the arbitration and my clients will drop the criminal complaints in the BMC.'" 7
Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168
(1998) (Duracraft). If the moving party sustains this burden,
the opposing party must show 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."
G. L. c. 231, § 59H. See Duracraft, supra at 168. See also Van
Liew v. Stansfield, 474 Mass. 31, 36 (2016) (Van Liew).
We address the defendants' alleged conduct under the
Duracraft framework, "review[ing] the judge's decision to grant
the special motion to dismiss to determine whether there was an
abuse of discretion or error of law." McLarnon v. Jokisch, 431
Mass. 343, 348 (2000).
a. Petitioning activity. "'[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) (North Am. Expositions). This activity includes "any
written or oral statement made before or submitted to a
legislative, executive, or judicial body, or any other
governmental proceeding; [or] any written or oral statement made
in connection with an issue under consideration or review by a
governmental proceeding." G. L. c. 231, § 59H. "To fall under 8
the 'in connection with' definition of petitioning under the
anti-SLAPP statute, a communication must be 'made to influence,
inform, or at the very least, reach governmental bodies --
either directly or indirectly.'" Blanchard, 477 Mass. at 149,
quoting from North Am. Expositions, supra at 862.
The defendants' appeals to the police and to the courts
were quintessential petitioning activity. See Van Liew, supra
at 36 (application for a harassment prevention order is
petitioning activity); O'Gara v. St. Germain, 91 Mass. App. Ct.
490, 497 (2017) ("When a person reports suspected criminal
activity to the police, [he] is engaging in constitutionally-
based petitioning activity for purposes of G. L. c. 231, § 59H")
(O'Gara). Dever does not meaningfully contend otherwise;
rather, he argues that the defendants' initial contact with law
enforcement and their seeking criminal complaints and harassment
prevention orders was "illegitimate" petitioning activity, "for
the ulterior purpose of affecting the ongoing civil arbitration
process." However, it is well established that in determining
whether conduct is petitioning activity for the purposes of a
§ 59H motion, "the motive behind the petitioning activity is
irrelevant." Office One, Inc. v. Lopez, 437 Mass. 113, 122
(2002). See Keystone Freight Corp. v. Bartlett Consol., Inc.,
77 Mass. App. Ct. 304, 314 (2010). 9
Where, as here, the moving party has sought and obtained
criminal process, the nonmoving party must rely on "some other
conduct by the special movant, apart from merely obtaining the
process, that amounted to an affirmative, subsequent misuse of
the process to further the special movant's alleged ulterior
purpose." Adams v. Whitman, 62 Mass. App. Ct. 850, 855 (2005).
"The question here then is whether [Dever] alleges that the
defendants engaged in any conduct germane to [his] abuse of
process claim, apart from their invocations of process, which
can provide a 'substantial basis' for [his] claim." 477
Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 169
(2017) (477 Harrison Ave.).
Dever asserts that the defendants' introduction of the
criminal complaints and harassment prevention orders into the
FINRA arbitration amounted to affirmative conduct apart from
merely obtaining the process. "Subsequent misuse of process, as
long as it is not also petitioning activity, may . . . provide a
nonpetitioning basis for a nonmoving party's abuse of process
claim." Ibid. However, the motion judge concluded that the
defendants' communications to the arbitrators in the course of
the FINRA arbitration was petitioning activity in and of itself.
We have assumed that a party's assertions made in the
course of a Department of Telecommunications and Energy
arbitration proceeding are petitioning activity. See Global 10
NAPS, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600,
604 n.4 (2005). The record before us is insufficient to
determine whether FINRA arbitration qualifies as a "governmental
proceeding" within the meaning of § 59H.6 However, Dever has
never argued, either in opposing the special motion in the trial
court or on appeal, that FINRA arbitration is not a governmental
proceeding. Accordingly, the issue is not before us. See Carey
v. New England Organ Bank, 446 Mass. 270, 285 (2006). For the
purpose of this appeal, we have no basis to disturb the motion
judge's determination that the defendants' conduct in the FINRA
arbitration was petitioning activity. Thus, the defendants have
met their burden of showing that Dever's complaint was based
solely on the defendants' activity.7
b. Factual or legal basis. Because Dever's complaint is
based on the defendants' petitioning activity, we turn to the
6 Compare Century 21 Chamberlain & Assocs. v. Haberman, 173 Cal. App. 4th 1, 5 (2009) (California anti-SLAPP statute does not protect participation in private contractual arbitration), with Mallard v. Progressive Choice Ins. Co., 188 Cal. App. 4th 531, 535 (2010) (California anti-SLAPP law applies to statutorily mandated arbitration of uninsured motorist claim disputes). 7 In his brief, Dever refers in passing to Rabinovitz's attempt to use the BMC criminal complaints as leverage to coerce Dever to drop the arbitration. See note 5, supra. However, Dever does not cite any authority or make any reasoned legal argument that this one act was a substantial basis for any of his claims against the defendants. "We decline to address the plaintiff's cursory and unsubstantiated argument, as it does not rise to the level of acceptable appellate argument." Cameron v. Carelli, 39 Mass. App. Ct. 81, 86 (1995). 11
second prong of the analysis -- whether Dever can "show, by a
preponderance of the evidence, through the pleadings and
affidavits, that the moving party's petitioning activities were
'devoid of any reasonable factual support or any arguable basis
in law' and that the petitioning activities 'caused actual
injury.'" Benoit v. Frederickson, 454 Mass. 148, 152-153
(2009), quoting from Wenger v. Aceto, 451 Mass. 1, 5 (2008)
(Wenger). Other than the unsupported assertion that the
defendants' petitioning activity was based on
"misrepresentations" and motivated to gain advantage in the
arbitration, Dever has not attempted to show that the
defendants' claims against him lacked factual support. Rather,
Dever argues that the defendants' petitioning activity was
devoid of legal merit because the District Court denied Foley's
application for criminal process and the BMC dismissed the
criminal complaints against him for want of venue.
Although the magistrate in District Court declined to issue
a criminal complaint on Foley's application, "[t]hat the
complaint ultimately did not issue is not dispositive of the
issue whether the anti-SLAPP statute protects the defendant's
conduct." Wenger, supra at 7. See 477 Harrison Ave., 477 Mass.
at 173 (nonmoving party cannot meet his burden solely by
"demonstrating that the petitioning activities were
unsuccessful"). Instead, Dever must prove by a preponderance of 12
the evidence that "'no reasonable person could conclude' that
[Foley's] report to the [Hanover] police was supported either in
fact or in law." O'Gara, 91 Mass. App. Ct. at 498. See Wenger,
supra ("The critical determination is not whether the
petitioning activity in question will be successful, but whether
it contains any reasonable factual or legal merit at all"). The
report indicates that Dever called and made a death threat to
Foley, that Foley hung up, and that Dever called back six more
times. Later that day Dever spoke to the Hanover police. He
remembered speaking to Foley, but did not remember threatening
him. Dever has failed to prove that Foley's complaint lacked an
arguable basis in law or fact.
As to the BMC complaints, Dever argues that their dismissal
on the basis of improper venue is sufficient to show that there
was no legal basis for their issuance. Assuming (without the
aid of a transcript or written findings and rationale from the
judge) that the complaints were correctly dismissed for improper
venue, such a dismissal does not render the complaints "devoid
of any reasonable factual support or any arguable basis in law."
G. L. c. 231, § 59H. The statutes at issue here, G. L. c. 275,
§ 2, and G. L. c. 269, § 14A, do not contain venue provisions.
"The venue question, therefore, is one of common law within any
limitation that art. 13 may impose." Commonwealth v. Brogan,
415 Mass. 169, 173 (1993). "One concept underlying art. 13 is 13
that fairness to a defendant normally requires that the
defendant not be transported far away for trial but rather be
tried where there is access to witnesses and evidence for the
defense." Id. at 174.
Mindful of the this concept, we cannot say that petitioning
the BMC for the issuance of criminal complaints -- where both
the victims and the defendant worked in Boston, and at least
some of the alleged threatening phone calls were made to the
Boston office of M&C -- lacked any arguable basis in law or
fact. Accordingly, Dever has failed to meet his burden with
respect to the criminal complaints.
It follows that the defendants' representations in the
FINRA arbitrations, which concerned their petitioning activity
before the police and the courts, as well as Dever's conduct
underlying that activity, were adequately supported by the
facts. Dever's allegation that the representations were
effective in influencing the FINRA panel suggests that the panel
considered the representations to be at least arguably relevant
to the proceedings as a matter of law.8 The judge did not err or
abuse his discretion in concluding that Dever failed to carry
8 To the extent Dever claims that the arbitration panel erred in considering the criminal complaints or harassment prevention orders, such an error is beyond judicial review. See School Comm. of Lowell v. Oung, 72 Mass. App. Ct. 698, 706-707 (2008). 14
his burden of showing that the defendants' petitioning activity
lacked a legal or factual basis.
2. Augmented Duracraft framework. Previously, where the
nonmoving party could not demonstrate that the moving party's
petitioning activity was devoid of any arguable basis in law or
fact, a special motion would be allowed. However, because "it
is often difficult [for the nonmovant] to make [this] showing,"
and because "such [an] inquiry is not entirely adequate to the
task of determining whether the special motion should be
allowed," the Supreme Judicial Court in Blanchard augmented the
Duracraft framework, providing a nonmoving party with an
additional basis on which to defeat a special motion.
Blanchard, 477 Mass. at 156. Should the nonmovant fail to meet
the "high bar," id. at 156 n.20, of proving by a preponderance
of the evidence that the claim was "devoid of any reasonable
factual support or any arguable basis in law," see G. L. c. 231,
§ 59H, "the nonmoving party may . . . meet its second-stage
burden and defeat the special motion to dismiss by demonstrating
in the alternative that each challenged claim does not give rise
to a 'SLAPP' suit." Blanchard, supra at 160. To do so, the
nonmoving party must demonstrate, considering the totality of
the evidence, "that each such claim was not primarily brought to
chill the special movant's legitimate petitioning activities."
Ibid. 15
We conclude that the Blanchard decision, which was issued
after oral argument but before decision of this appeal, applies
to this case.9 "[D]ecisional law is generally applied
retroactively, unless doing so would fail to protect the
reasonable expectations of parties." Shapiro v. Worcester, 464
Mass. 261, 268 (2013). "However, in exceptional circumstances,
when 'determining whether a new rule arising from decisional law
should apply [only] prospectively, we look at three factors:
(1) whether a new principle has been established whose
resolution was not clearly foreshadowed; (2) whether retroactive
application will further the rule; and (3) whether inequitable
results, or injustice or hardships, will be avoided by a holding
of nonretroactivity.'" Ibid., quoting from Keller v. O'Brien,
425 Mass. 774, 782 (1997).
Here, retroactive application is appropriate. First,
although "the Legislature passed the anti-SLAPP statute to
counteract 'meritless' lawsuits brought to chill a party's
petitioning activity," Blanchard, supra at 157, the Duracraft
court nearly twenty years ago foreshadowed the augmented
framework in Blanchard when it recognized that the anti-SLAPP
9 We invited the parties to submit memoranda concerning the effect, if any, of the Blanchard decision on this case. Both parties assumed that Blanchard applied and made arguments addressing the merits of Dever's claim under the new framework. After reviewing the memoranda, we concluded that the parties' arguments should be developed and decided in the Superior Court in the first instance. 16
statute "did not address concerns over its breadth and reach,
and ignored its potential uses in litigation far different from
the typical SLAPP suit." Duracraft, 427 Mass. at 163. Second,
this new framework furthers the purpose of the anti-SLAPP
statute: "to distinguish between meritless claims targeting
legitimate petitioning activity and meritorious claims with no
such goal." Blanchard, supra. Third, given the foregoing,
retroactive application will not result in specific hardships or
inequities. Finally, we note that without discussion the
Supreme Judicial Court remanded both Blanchard, supra at 161,
and 477 Harrison Ave., 477 Mass. at 175-176, which were issued
the same day, for consideration under the augmented Duracraft
framework.
Although Dever was never able to clearly articulate to us
what he meant when he contended that the defendants' petitioning
activity was not "legitimate," in light of the change to the
Duracraft framework, he may endeavor to establish that his
claims concerning the defendants' communications to the police,
to the courts, and in the FINRA arbitration do not constitute a
SLAPP suit. If Dever cannot meet this burden, the defendants'
special motion should be allowed.
Conclusion. Although the judge did not err or abuse his
discretion in allowing the defendants' special motion to
dismiss, the order allowing the special motion is vacated and 17
remanded solely for consideration under the augmented Duracraft
So ordered.