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-1154
MARCO TAMMARO
vs.
STEPHANIE RAUSEO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After trying for years to block a subdivision development
in her neighborhood, the defendant, Stephanie Rauseo, sent an e-
mail message asking the superintendent of the Lynnfield Center
Water District (water district) to stop the plaintiff developer,
Marco Tammaro, from "further polluting our drinking water
field," and complaining that the "junk" he "truck[ed] in leaks
to our field" and that his silt fences were improperly
installed. In response, Tammaro brought this action for
defamation in the Superior Court. Rauseo moved to dismiss
Tammaro's claim under the anti-SLAPP statute, G. L. c. 231, § 59H (1996)1, but the judge denied the motion. After a trial, a
jury returned a verdict in favor of Tammaro. Rauseo appealed
from the judgment, including the denial of her anti-SLAPP
special motion to dismiss. Exercising de novo review of that
denial, we conclude that, in opposing the special motion,
Tammaro did not show that Rauseo's petitioning activity was
devoid of any reasonable factual support or any arguable basis
in law. See G. L. c. 231, § 59H; Bristol Asphalt, Co. v.
Rochester Bituminous Prods., Inc., 493 Mass. 539, 557-562 (2024)
(Bristol Asphalt). Because Rauseo's special motion should have
been allowed, we reverse the judgment in Tammaro's favor and
direct that a judgment be entered dismissing the action.
Background. Since 2015, Tammaro has sought to develop a
two-house subdivision called Violet Circle on a property he owns
in the Apple Hill neighborhood of Lynnfield. In 2017, Rauseo,
as the representative of the Apple Hill Neighbors Group
(neighbors group), filed an appeal challenging a superseding
order of conditions issued by the Department of Environmental
Protection (DEP) for the subdivision, approving the plaintiff's
development, pursuant to the Wetlands Protection Act, G. L.
c. 131, § 40, and its supporting regulations. After the DEP's
1 The statute was amended on July 29, 2022. The amendment does not impact our analysis. Unless otherwise noted, references to § 59H are to the version as amended through St.1996, c. 450, § 245.
2 Office of Appeals and Dispute Resolution concluded that the
neighbors group's claims were ambiguous and unsupported by
expert testimony, the DEP commissioner adopted its
recommendation and dismissed the appeal, thus allowing Tammaro
to begin construction on the lots.
In 2017, Rauseo and the neighbors group filed suit in
Federal District Court against Tammaro and Federal defendants.
They claimed that Tammaro violated Federal environmental laws by
filling his property with pollutants and the DEP and the Army
Corps of Engineers failed to investigate and sanction Tammaro's
noncompliance with Federal laws. The Federal judge dismissed
the neighbors group from the lawsuit because it failed to
identify its members, dismissed Rauseo's claims against the
Federal defendants, and dismissed her Federal Safe Drinking
Water Act, 42 U.S.C. § 300f et seq., and "improper ex parte
communications" claims against Tammaro. The Federal judge did
not dismiss Rauseo's claims against Tammaro under the Federal
Clean Water Act, 33 U.S.C. § 1251 et seq. Tammaro moved for
summary judgment on those claims, arguing in part that Rauseo
lacked standing to sue because there were no Federal waters
located on Tammaro's property and, even if there were, the
property was not the cause of any alleged pollution. The
Federal judge allowed Tammaro's motion without specifying the
basis for the grant of summary judgment.
3 In July 2020, one month after final judgment entered in
Federal court, Rauseo received an e-mail message from a member
of the neighbors group claiming that "at least 5 large dump
trucks" had dumped "something at [Tammaro]'s land today."
Rauseo forwarded this e-mail message to the water district
superintendent, John Scenna, and his wife. Rauseo's e-mail
message stated, in full, "I'm [forwarding] this to you because
maybe John can stop Tammaro from further polluting our drinking
water field. This junk he's trucking in leaks to our field.
His [silt] fences are improperly installed."2 In an e-mail
message, the superintendent thanked Rauseo "for sharing this
information" and wrote that the town engineer and planning
director, whom he copied on his response, would be "able to
better address the possible concern of illegal dumping at the
Violet Circle Development."
After obtaining a copy of the e-mail message through a
public records request, Tammaro stopped construction on the
subdivision and, three months after the e-mail message was sent,
filed the underlying action. He alleged that the statements in
Rauseo's e-mail message were defamatory, caused him "to suffer
emotional distress[,] and . . . damaged his reputation in the
2 Rauseo's e-mail message had two typographical errors: "forewarning" instead of "forwarding," and "silk" instead of "silt." There is no dispute as to her intended meaning.
4 eyes of the Lynnfield community." In her answer, Rauseo denied
that her statements were false and asserted that they were
protected petitioning activity under the First Amendment to the
United States Constitution. She also filed a special motion to
dismiss pursuant to the anti-SLAPP statute, asserting that
Tammaro's defamation claim was "expressly predicated upon a
communication to a government official petitioning for official
action." The judge denied the special motion, ruling that even
though Rauseo "presented enough evidence to raise a presumption
that the statute applies," Tammaro established by a
preponderance of the evidence that Rauseo's conduct "lacked any
reasonable factual support or any arguable basis in law" and
that her conduct "caused actual injury." Following a three-day
trial, the jury returned a verdict in favor of Tammaro and
awarded him damages in the amounts of $75,000 for economic loss
and $50,000 for pain and suffering. The judge denied Rauseo's
motion for judgment notwithstanding the verdict, a new trial,
and remittitur.
Discussion. On appeal, Rauseo challenges the judgment on
several trial grounds, including the judge's decision not to
treat Tammaro as a limited purpose public figure, the
instruction to the jury on Rauseo's right to petition, and the
evidentiary basis for the award of damages. Because we agree
with Rauseo's additional argument that the judge should have
5 dismissed Tammaro's defamation claim under the anti-SLAPP
statute, we do not reach those trial issues.
1. Postjudgment review of denial of anti-SLAPP special
motion to dismiss. We first address whether Rauseo's challenge
to the judge's denial of her special motion to dismiss under the
anti-SLAPP statute is properly before us. The anti-SLAPP
statute does not specify when the denial of a special motion may
be appealed. Contrast G. L. c. 184, § 15 (d) (prescribing
thirty-day appeal period for denial of special motion to dismiss
and other interlocutory orders under lis pendens statute).
Applying the general rule that there is no right to appeal from
an interlocutory order unless a statute or rule authorizes it,
see Ashford v. Massachusetts Bay Transp. Auth., 421 Mass. 563,
565 (1995), this court initially did not recognize a right to
interlocutory appeal from the denial of an anti-SLAPP special
motion. Kalogianis v. Leone, 50 Mass. App. Ct. 910, 910-911
(2000), overruled by Fabre v. Walton, 436 Mass. 517, 522 n.7,
S.C., 441 Mass. 9 (2004). Cf. Duracraft Corp. v. Holmes Prods.
Corp., 427 Mass. 156, 159 (1998) (reviewing denial of anti-SLAPP
motion to dismiss after petitioners granted leave to appeal).
In Fabre v. Walton, the Supreme Judicial Court recognized that
right, reasoning that the protections of the anti-SLAPP statute
"are similar in purpose to the protections afforded public
officials by the doctrine of governmental immunity" and that
6 interlocutory orders denying claims of governmental immunity can
be appealed under the doctrine of present execution because
"[t]he entitlement is an immunity from suit rather than a mere
defense to liability." Fabre, supra at 521-522 & n.7, citing
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
The availability of an immediate appeal from the denial of
an anti-SLAPP special motion to dismiss, however, does not
preclude the proponent from instead challenging the denial after
final judgment. While some jurisdictions follow a "one shot"
rule whereby a party forfeits its right to appellate review of
an order after final judgment if it fails to take an earlier
interlocutory appeal, see, e.g., In re Baycol Cases I & II, 248
P.3d 681, 687 n.8 (Cal. 2011), citing Cal. Civ. Proc. Code
§ 906, in Massachusetts "a party need not claim an appeal from
an interlocutory order to preserve the party's right to have
such order reviewed upon appeal from the final judgment." Mass.
R. A. P. 3 (a) (2), as appearing in 481 Mass. 1603 (2019). In
Aiello v. Aiello, 447 Mass. 388, 397-399 (2006), the Supreme
Judicial Court applied this rule in declining to dismiss a
postjudgment appeal challenging certain interlocutory
receivership orders even though the appellant could have
appealed from them immediately after they were entered. The
court noted that nothing in its earlier decisions allowing such
interlocutory appeals suggested that "the failure to appeal from
7 such an order forfeits a party's right later to appeal from the
order after final judgment has entered." Id. at 397-398,
discussing Shannon v. Shepard Mfg. Co., 230 Mass. 224, 229
(1918). There is similarly no suggestion in Fabre or the anti-
SLAPP statute itself that a failure to appeal immediately from
the denial of a special motion forfeits a petitioner's right to
challenge the order in an appeal from final judgment.
In light of Mass. R. A. P. 3 (a) (2) and the remedial
purpose of the anti-SLAPP statute, we conclude that the
proponent of a special motion to dismiss who forgoes an
interlocutory appeal from its denial retains the right to have
such order reviewed on appeal from final judgment. The statute
shields petitioners from liability, not just the burden of
litigation. Cf. Bresler v. Muster, 496 Mass. 111, 122 (2025)
(common-law immunity protects public employees "from both suit
and liability"). While a party that waits to challenge the
denial of a special motion after final judgment loses some of
the procedural protections afforded by the statute, see
Fabre, 436 Mass. at 520-521, the primary purpose of the statute
is "to immunize parties from claims 'based on' their petitioning
activities." Duracraft Corp., 427 Mass. at 167. It provides
for the "presumptive entitlement to dismissal" of claims under a
"very favorable statutory standard." Bristol Asphalt, 493 Mass.
at 555. Moreover, its protection is not limited to the
8 beginning of cases, but rather extends to special motions filed
"at any later time upon terms [the court] deems proper." G. L.
c. 231, § 59H.
Allowing a petitioner to assert her rights under the anti-
SLAPP statute after final judgment is consistent with the right
of public officials to assert governmental immunity defenses in
that same posture. See, e.g., Littles v. Commissioner of
Correction, 444 Mass. 871, 876-880 (2005), citing Fisichelli v.
Town of Methuen, 884 F.2d 17, 19 (1st Cir. 1989) (defendants who
failed to pursue timely interlocutory appeal on qualified
immunity could raise issue on appeal after trial). A contrary
"use it or lose it" approach has no basis in the statutory text
and would lead to unnecessary interlocutory appeals on issues
that might become moot if the proponent of the special motion to
dismiss prevails at trial. Here, for example, Rauseo may well
have believed that she was likely to win at summary judgment or
trial and that continuing with the litigation in Superior Court
was her most efficient path to relief. Whatever the strategic
reason may be, the anti-SLAPP statute gives petitioners options
to minimize the burden of the resulting litigation, rather than
mandate that they follow only one litigation strategy.3
3 The denial of an anti-SLAPP special motion to dismiss is unlike temporary or preliminary interlocutory orders that cannot be challenged after final judgment. For example, courts do not generally review the denial of motions for summary judgment
9 2. Rauseo's anti-SLAPP motion. After the denial of the
motion in this case, in Bristol Asphalt, the Supreme Judicial
Court revised the framework used to assess special motions to
dismiss under G. L. c. 231, § 59H. See Bristol Asphalt, 493
Mass. at 554-560. As the court explained in a companion case,
this framework applies to all cases in which an anti-SLAPP
motion or appeal remained pending as of the issuance of the
rescript in Bristol Asphalt, as the case here. See Columbia
Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 578 (2024).
A party may file an anti-SLAPP special motion to dismiss if "the
after trial because "[t]he merits of a claim are better tested on appeal on the record as it exists after an evidentiary trial than on the record in existence at the time the motion for summary judgment was denied." Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). Similarly, courts will not review a preliminary injunction that has been mooted by entry of a final judgment and "has no effect upon present rights." Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 190– 191 (1943). Unlike such interlocutory orders, the denial of an anti-SLAPP special motion presents a question of law that is "separate from the merits of the underlying action." 477 Harrison Ave., LLC v. Jace Boston, LLC, 477 Mass. 162, 176 n.15 (2017), S.C., 483 Mass. 514 (2019), citing Mitchell, 472 U.S. at 528-529. That is because the statute focuses on "the legitimacy of the prior petitioning activity by the party filing the special motion to dismiss," not "the elements of the claims that the party is seeking to have dismissed." Bristol Asphalt, 493 Mass at 547 n.13. In addition, special motions are decided based on the parties' pleadings, competing affidavits, and any "specified discovery" allowed for "good cause shown," not on evidence introduced at trial. G. L. c. 231, § 59H, first and third pars. See Bristol Asphalt, supra at 557-558; Hidalgo v. Watch City Constr. Corp. 105 Mass. App. Ct. 148, 153 & n.5 (2024), citing Benoit v. Frederickson, 454 Mass. 148, 156 (2009) (Cordy, J., concurring).
10 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." G. L. c. 231, § 59H. At the first stage of the
analysis, the proponent of the special motion to dismiss "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." Bristol Asphalt,
supra at 555-556. If the proponent makes this showing, "the
burden shifts to the special motion opponent." Columbia Plaza
Assocs., supra at 577, citing G. L. c. 231, § 59H, first par.
At that second stage, "the special motion opponent must show by
a preponderance of the evidence that the special motion
proponent's petitioning activity (1) was devoid of any
reasonable factual support or any arguable legal basis; and
(2) caused the special motion opponent actual injury." Columbia
Plaza Assocs., supra. "If the special motion opponent makes
both showings, the special motion is denied. Otherwise, the
special motion is allowed." Id. See Bristol Asphalt, supra at
555-560.
a. Rauseo's e-mail message was protected petitioning
activity. Applying the revised framework here, we agree with
the judge that Rauseo made the requisite threshold showing that
Tammaro's claim for defamation was based on her petitioning
11 activity. See Bristol Asphalt, 493 Mass. at 555-556. As
discussed, petitioning is broadly defined under the anti-SLAPP
statute, see id. at 549-550, and includes "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 legislative, executive, or judicial
body, or any other governmental proceeding." G. L. c. 231,
§ 59H, sixth par.
As Tammaro stated in his complaint and reiterated in his
opposition to the special motion to dismiss, he based his
defamation claim on three statements in Rauseo's 2020 e-mail
message to the water district superintendent: i.e., (1) "maybe
[the water district superintendent] can stop Tammaro from
further polluting our drinking water"; (2) "[t]his junk he's
trucking in leaks to our field"; and (3) "[h]is [silt] fences
are improperly installed." See Bristol Asphalt, 493 Mass. at
561 (at first stage of framework, court conducts "a facial
review of a special motion opponent's pleading to identify which
factual allegations serve as the basis for a particular claim").
The water district is a regulated municipal entity whose
commissioners are elected by voters who reside within its
geographic bounds. See St. 1939, c. 336, §§ 1, 9, 11. In
support of her special motion, Rauseo submitted evidence showing
12 that, for many years, the water district had assessed and taken
measures to address the impact of polluted runoff water and
contamination from hazardous materials on the town's drinking
water supply, including at a brook adjacent to Tammaro's
property.
Because Rauseo's e-mail message raised concerns about
perceived threats to the local water supply to a public official
charged with managing it, the e-mail message qualifies as
petitioning under the anti-SLAPP statute. See Columbia Plaza
Assocs., 493 Mass. at 580 (submission of written statement to
government agency constitutes petitioning); North Am.
Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 863
(2009) ("The right to petition a governmental body for redress
of a grievance is the very essence of petitioning activity").
That Rauseo sent her e-mail message to the superintendent's
private, not work, e-mail address is immaterial. See North Am.
Expositions Co. Ltd Partnership, supra at 862, quoting Global
NAPS, Inc. v. Verizon New England, Inc. 63 Mass. App. Ct. 600,
605 (2005) ("Petitioning includes all 'statements made to
influence, inform, or at the very least, reach governmental
bodies -- either directly or indirectly'"). In addition, it is
undisputed that Tammaro's claim had "no substantial basis in
conduct other than or in addition to [Rauseo's] alleged
13 petitioning activity." See Bristol Asphalt, 493 Mass. at 555-
556.
b. Tammaro did not show that Rauseo's e-mail message was
devoid of any reasonable factual support or arguable basis in
law. Because Rauseo met her burden under the first stage of the
anti-SLAPP framework, the burden shifted to Tammaro to show, by
a preponderance of the evidence, that Rauseo's e-mail message
was "devoid" of "any reasonable factual support or any arguable
basis in law." Bristol Asphalt, 493 Mass. at 557-558 & n.18.4
As the Supreme Judicial Court has noted, this is "a difficult
task" that essentially requires the opponent of the special
motion to dismiss to "prove a negative." Id. at 555, 557. The
task that Tammaro faced was even more difficult, since no basis
in law is generally required for an individual to send an e-mail
message to a local official.
Tammaro argues that "[n]o reasonable person could think"
that Rauseo's petitioning activity "had a reasonable basis in
law or fact." This argument founders at the outset because, in
his opposition to Rauseo's special motion to dismiss, Tammaro
made no effort to disprove one of the three statements on which
his defamation claim was based: the allegation that the silt
Because Tammaro did not satisfy this second-stage 4
requirement, we do not consider whether he showed that Rauseo's petitioning activity "caused actual injury" to him. G. L. c. 231, § 59H. See Bristol Asphalt, 493 Mass. at 557-558.
14 fences on his property were improperly installed. In support of
her special motion, Rauseo stated in an affidavit that she saw
and took photographs showing that Tammaro's silt fences were not
buried deep enough to prevent topsoil from being carried away by
stormwater runoff. Yet while Tammaro alleged that this
statement was "false and malicious," he made no such showing of
falsity but rather only alleged that no agency had issued a
citation due to the fences. See Hidalgo v. Watch City Constr.
Corp., 105 Mass. App. Ct. 148, 152-153 (2024) (reversing denial
of anti-SLAPP motion where opponent presented "no evidence at
all" that petitioning activity lacked objectively reasonable
factual basis). Nor did Tammaro request discovery as to the
basis for Rauseo's statement. See id. at 153 n.5.
Tammaro also failed to show that the other statements in
Rauseo's e-mail message -- involving Tammaro "further polluting
our drinking water" and the "junk he's trucking" leaking "to our
field" -- were devoid of any reasonable factual support.5
5 Because Tammaro did not show that any of the three allegedly defamatory statements in Rauseo's e-mail was devoid of any reasonable factual support or arguable basis in law, we need not resolve whether an opponent can defeat an anti-SLAPP special motion to dismiss if it shows that some but not all of the petitioning activity on which its claim is based meets that standard. See Bristol Asphalt, 493 Mass. at 557-558 & n.18 (noting that, at second stage of revised framework, "the 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").
15 Although Rauseo asserted in her answer that the statements "were
opinion, not fact, and thus not actionable," we assume without
deciding that they implied an actionable statement of fact that
whatever Rauseo's neighbor saw being dumped on Tammaro's
property in July 2020 was likely to pollute or otherwise
threaten the area's water. See King v. Globe Newspaper Co., 400
Mass. 705, 713 (1987). In support of her special motion to
dismiss, Rauseo presented evidence regarding the pollution of
the local water supply, including studies reporting pollution in
the brook adjacent to Tammaro's property and describing
development in that area as "a major concern." While Rauseo did
not present evidence specifically addressing the contents of the
dump trucks seen by her neighbor in 2020, neither did Tammaro in
his opposition. Rather, he attached an expert report, submitted
in the Federal litigation and served on Rauseo, that analyzed
soil collected from his property between 2015 and 2017.
Notwithstanding the divergence in dates, Tammaro contended that
his report proved that the fill he trucked in, as well as the
runoff water and the groundwater leaving his property, was clean
and, following his "success in the [F]ederal litigation," Rauseo
"should have realized that Tammaro had proven definitively and
presumably for the final time that Rauseo's claim[s] were
untrue."
16 In fact, no such definitive conclusion was reached in that
case. The Federal judge dismissed Rauseo's Safe Drinking Water
Act claim for lack of standing but entered summary judgment
dismissing her Clean Water Act claim without explaining the
basis for his decision. It is thus entirely possible that the
judge agreed with Tammaro's primary argument -- that there could
be no Clean Water Act violation because there are no "waters of
the United States" on Tammaro's property to pollute, see Rapanos
v. United States, 547 U.S. 715, 739-742 (2006) -- without
reaching Tammaro's secondary argument that the fill he brought
to the property was clean.
We do not foreclose the possibility that a judicial
declaration could so conclusively debunk an individual's
complaint that she would lose the protections of the anti-SLAPP
statute if she raised the complaint anew with a public official.
But that did not happen here. In allowing summary judgment, the
Federal judge did not expressly find that there was no basis to
Rauseo's claims of pollution; thus, the parties' pleadings and
competing affidavits in the present case did not establish that
her statements were "flatly incorrect," Bristol Asphalt, 493
Mass. at 559, citing Maxwell v. AIG Dom. Claims, Inc., 72 Mass.
App. Ct. 685, 696 (2008), and, as noted, Tammaro did not attempt
17 to disprove the other allegedly defamatory statement in Rauseo's
e-mail message.
Conclusion. Because Tammaro did not show that Rauseo's
petitioning activity was devoid of any reasonable factual
support or any arguable legal basis, Rauseo was shielded from
liability for his defamation claim based on that activity. We
reverse the judgment in Tammaro's favor and direct that a
judgment be entered dismissing the action.
So ordered.
By the Court (Desmond, Walsh & Toone, JJ.6),
Clerk
Entered: July 28, 2025.
6 The panelists are listed in order of seniority.