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
22-P-738
MYRTISE KRETSEDEMAS
vs.
IEVGENIIA ZASOBA and another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Myrtise Kretsedemas (Myrtise), appeals from
a judgment dismissing her first amended complaint, in which she
raised claims of defamation and intentional infliction of
emotional distress against her former husband, Philip
Kretsedemas (Philip), and Ievgeniia Zasoba (Zasoba). After a
hearing, a Superior Court judge allowed Philip's and Zasoba's
special motions to dismiss filed pursuant to G. L. c. 231,
§ 59H, the anti-strategic litigation against public
participation (anti-SLAPP) statute. On appeal, Myrtise claims
that the judge erred in dismissing the complaint without first
1 Philip Kretsedemas. requesting the plaintiff to verify her complaint or otherwise
support it with an affidavit.2 We affirm.
We review the judge's ruling on a special motion to
dismiss, made pursuant to G. L. c. 231, § 59H, "for an abuse of
discretion or error of law." Blanchard v. Steward Carney Hosp.,
Inc., 483 Mass. 200, 203 (2019) (Blanchard II). "General Laws
c. 231, § 59H, 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) (Blanchard I). "The act enables
the victim to request, through a special motion, quick dismissal
of a meritless suit and payment of the victim's costs and
2 Myrtise also vaguely complains that she should have been granted discovery to oppose the special motions to dismiss. However, the anti-SLAPP statute provides, "All discovery proceedings shall be stayed upon the filing of the special motion under this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted." G. L. c. 231, § 59H. Myrtise did not request that the judge permit her "specified discovery." In this posture, the claim is waived. Moreover, the anti-SLAPP statute was enacted to provide a "quick remedy against the time and cost of otherwise protracted litigation" (quotation and citation omitted). Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 483-484 (2017). Therefore, allowing this case to proceed to discovery at this stage, absent good cause, would defeat this purpose.
2 attorney's fees." Vittands v. Sudduth, 41 Mass. App. Ct. 515,
517 (1996).
A special motion to dismiss is evaluated in stages. "At
the first stage, a special movant must demonstrate that the
nonmoving party's claims are solely based on its own petitioning
activities." Blanchard I, 477 Mass. at 159. See Duracraft
Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998). "At
the second stage, if the special movant meets [the first stage]
burden, the burden will shift . . . to the nonmoving party."
Blanchard I, supra. From there, the nonmoving party may prevail
(1) by "demonstrating that the special movant's petitioning
activities upon which the challenged claim is based lack a
reasonable basis in fact or law . . . and that the petitioning
activities at issue caused [her] injury," or (2) "by
demonstrating . . . that each challenged claim does not give
rise to a 'SLAPP' suit." Id. at 159-160.
Here, Philip's and Zasoba's special motions to dismiss
apparently were supported by affidavits and significant other
evidentiary materials, including police reports, a 911 call log,
and a public records request and response. The judge relied on
these materials in deciding the motions. However, none of these
materials were included in Myrtise's record appendix.3
3 "[T]he burden is on the appellant . . . to furnish a record that supports [her] claims on appeal." Hasouris v. Sorour, 92
3 Relative to the first stage, the judge held that Philip and
Zasoba carried their initial burden to demonstrate that
Myrtise's claims arose out of Philip's and Zasoba's protected
petitioning activities, i.e., the 911 call and the G. L. c. 209A
petition. See McLarnon v. Jokisch, 431 Mass. 343, 347 (2000)
(filing for abuse protection orders protected under anti-SLAPP
statue); Keegan v. Pellerin, 76 Mass. App. Ct. 186, 190 (2010)
(reporting suspected criminal activity to police protected
petitioning activity). Thus, the burden shifted to Myrtise.
At the second stage, judge held that Myrtise failed to
demonstrate that: (1) Philip or Zasoba were engaged in "sham"
petitioning activity; or (2) her claims were not brought
primarily to chill Philip's and Zasoba's protected petitioning
activities. See Blanchard I, 477 Mass. at 159-160. In so
holding, the judge pointed out that Myrtise not only failed to
introduce any admissible evidence raising an inference that
Philip's and Zasoba's showing was in any way inaccurate, but
also that on the record before the judge, there existed an
Mass. App. Ct. 607, 610 n.4 (2018), quoting Arch Med. Assocs. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992). See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019); Mass. R. A. P. 18 (a) (1) (D), as appearing in 491 Mass. 1603 (2023). For this reason, we do not have a factual basis to conclude that the judge abused her discretion by allowing the motions. In any event, Myrtise does not argue on appeal that Philip's and Zasoba's claimed actions were not protected petitioning activities.
4 overwhelming inference that Myrtise, in fact, intended to chill
legitimate petitioning activity.
For example, Myrtise did not present any evidence showing
that the 911 call (which was made by Philip, not Zasoba, as
Myrtise asserts in her first amended complaint,) was devoid of
factual or legal merit. Philip and Zasoba, on the other hand,
apparently submitted affidavits and primary documents showing
that the call was warranted, including an email message in which
Myrtise admitted that she had broken Philip's phone. Also, as
the judge properly concluded, Myrtise submitted no proof of
actual injury.
A nonmoving party that cannot demonstrate that the moving
party engaged in sham petitioning may nonetheless defeat a
special motion to dismiss by demonstrating that the suit (1) is
"colorable"; and (2) "was not brought primarily to chill the
special movant's legitimate exercise of its right to petition,
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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
22-P-738
MYRTISE KRETSEDEMAS
vs.
IEVGENIIA ZASOBA and another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Myrtise Kretsedemas (Myrtise), appeals from
a judgment dismissing her first amended complaint, in which she
raised claims of defamation and intentional infliction of
emotional distress against her former husband, Philip
Kretsedemas (Philip), and Ievgeniia Zasoba (Zasoba). After a
hearing, a Superior Court judge allowed Philip's and Zasoba's
special motions to dismiss filed pursuant to G. L. c. 231,
§ 59H, the anti-strategic litigation against public
participation (anti-SLAPP) statute. On appeal, Myrtise claims
that the judge erred in dismissing the complaint without first
1 Philip Kretsedemas. requesting the plaintiff to verify her complaint or otherwise
support it with an affidavit.2 We affirm.
We review the judge's ruling on a special motion to
dismiss, made pursuant to G. L. c. 231, § 59H, "for an abuse of
discretion or error of law." Blanchard v. Steward Carney Hosp.,
Inc., 483 Mass. 200, 203 (2019) (Blanchard II). "General Laws
c. 231, § 59H, 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) (Blanchard I). "The act enables
the victim to request, through a special motion, quick dismissal
of a meritless suit and payment of the victim's costs and
2 Myrtise also vaguely complains that she should have been granted discovery to oppose the special motions to dismiss. However, the anti-SLAPP statute provides, "All discovery proceedings shall be stayed upon the filing of the special motion under this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted." G. L. c. 231, § 59H. Myrtise did not request that the judge permit her "specified discovery." In this posture, the claim is waived. Moreover, the anti-SLAPP statute was enacted to provide a "quick remedy against the time and cost of otherwise protracted litigation" (quotation and citation omitted). Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 483-484 (2017). Therefore, allowing this case to proceed to discovery at this stage, absent good cause, would defeat this purpose.
2 attorney's fees." Vittands v. Sudduth, 41 Mass. App. Ct. 515,
517 (1996).
A special motion to dismiss is evaluated in stages. "At
the first stage, a special movant must demonstrate that the
nonmoving party's claims are solely based on its own petitioning
activities." Blanchard I, 477 Mass. at 159. See Duracraft
Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998). "At
the second stage, if the special movant meets [the first stage]
burden, the burden will shift . . . to the nonmoving party."
Blanchard I, supra. From there, the nonmoving party may prevail
(1) by "demonstrating that the special movant's petitioning
activities upon which the challenged claim is based lack a
reasonable basis in fact or law . . . and that the petitioning
activities at issue caused [her] injury," or (2) "by
demonstrating . . . that each challenged claim does not give
rise to a 'SLAPP' suit." Id. at 159-160.
Here, Philip's and Zasoba's special motions to dismiss
apparently were supported by affidavits and significant other
evidentiary materials, including police reports, a 911 call log,
and a public records request and response. The judge relied on
these materials in deciding the motions. However, none of these
materials were included in Myrtise's record appendix.3
3 "[T]he burden is on the appellant . . . to furnish a record that supports [her] claims on appeal." Hasouris v. Sorour, 92
3 Relative to the first stage, the judge held that Philip and
Zasoba carried their initial burden to demonstrate that
Myrtise's claims arose out of Philip's and Zasoba's protected
petitioning activities, i.e., the 911 call and the G. L. c. 209A
petition. See McLarnon v. Jokisch, 431 Mass. 343, 347 (2000)
(filing for abuse protection orders protected under anti-SLAPP
statue); Keegan v. Pellerin, 76 Mass. App. Ct. 186, 190 (2010)
(reporting suspected criminal activity to police protected
petitioning activity). Thus, the burden shifted to Myrtise.
At the second stage, judge held that Myrtise failed to
demonstrate that: (1) Philip or Zasoba were engaged in "sham"
petitioning activity; or (2) her claims were not brought
primarily to chill Philip's and Zasoba's protected petitioning
activities. See Blanchard I, 477 Mass. at 159-160. In so
holding, the judge pointed out that Myrtise not only failed to
introduce any admissible evidence raising an inference that
Philip's and Zasoba's showing was in any way inaccurate, but
also that on the record before the judge, there existed an
Mass. App. Ct. 607, 610 n.4 (2018), quoting Arch Med. Assocs. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992). See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019); Mass. R. A. P. 18 (a) (1) (D), as appearing in 491 Mass. 1603 (2023). For this reason, we do not have a factual basis to conclude that the judge abused her discretion by allowing the motions. In any event, Myrtise does not argue on appeal that Philip's and Zasoba's claimed actions were not protected petitioning activities.
4 overwhelming inference that Myrtise, in fact, intended to chill
legitimate petitioning activity.
For example, Myrtise did not present any evidence showing
that the 911 call (which was made by Philip, not Zasoba, as
Myrtise asserts in her first amended complaint,) was devoid of
factual or legal merit. Philip and Zasoba, on the other hand,
apparently submitted affidavits and primary documents showing
that the call was warranted, including an email message in which
Myrtise admitted that she had broken Philip's phone. Also, as
the judge properly concluded, Myrtise submitted no proof of
actual injury.
A nonmoving party that cannot demonstrate that the moving
party engaged in sham petitioning may nonetheless defeat a
special motion to dismiss by demonstrating that the suit (1) is
"colorable"; and (2) "was not brought primarily to chill the
special movant's legitimate exercise of its right to petition,
i.e., that it was not retaliatory" (quotations and alteration
omitted). Blanchard II, 483 Mass. at 204, quoting Blanchard I,
477 Mass. at 159-161.
As the judge held, neither Myrtise's defamation nor her
intentional infliction of emotional distress claim is colorable.
The evidence (which was not made part of the record on appeal)
apparently suggested that no 911 call in which the alleged
defamatory comments were made was ever made under Zasoba's name
5 or phone number. Myrtise produced no countervailing evidence.
Consequently, the defamation claim against Zasoba is not
colorable. Regarding Philip, his statements to the 911 operator
were not false, as Myrtise admits that she broke Philip's phone
and contends she was not armed during the incident. Because
Myrtise cannot show that Philip made a false statement, her
defamation claim against him is not colorable. See Kilnapp
Enters., Inc. v. Massachusetts State Auto. Dealers Ass'n, 89
Mass. App. Ct. 212, 217-218 (2016).
Relative to the intentional infliction of emotional
distress claim, Zasoba could not have inflicted emotional
distress on Myrtise if she did not make the 911 call, and Philip
making a 911 call to document the incident on December 10, 2020,
cannot be characterized as "extreme and outrageous," "beyond all
possible bounds of decency," or "utterly intolerable in a
civilized community." See Agis v. Howard Johnson Co., 371 Mass.
140, 144-145 (1976). As the judge properly held, it was
reasonable for Philip to place a call to the police for help
during a verbal altercation with his spouse in which she had
started breaking and smashing things, including his phone. For
those reasons, Myrtise's intentional infliction of emotional
distress claim against Philip and Zasoba is not colorable.4
4 Myrtise does not argue that the judge abused her discretion by determining that Myrtise's primary motive in bringing her suit
6 Finally, Zasoba has requested attorney's fees on appeal.
See G. L. c. 231, § 59H, and Mass. R. A. P. 25, as appearing in
481 Mass. 1654 (2019). Although the appeal was less than
meritorious, we exercise our discretion to deny the request.
Judgment dismissing first amended complaint affirmed.
By the Court (Meade, Hershfang & D'Angelo, JJ.5),
Clerk Entered: October 12, 2023.
was retaliatory and intended to chill Philip's and Zasoba's petitioning activity. In any event, the evidence provided to the judge apparently demonstrated that Myrtise's motivation for the filing of this suit was her anger over the fact that Philip called the police while they were engaged in a verbal altercation.
5 The panelists are listed in order of seniority.