Sally Wynn v. Diane Delorie.

• Court: Massachusetts Appeals Court
• Decided: January 2, 2025
• Docket: 24-P-0052
• Status: Unpublished

Opinion

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

24-P-52

SALLY WYNN

vs.

DIANE DELORIE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this interlocutory appeal, the defendant challenges the

denial of her special motion to dismiss under G. L. c. 231,

§ 59H (the anti-SLAPP statute). We affirm in part and reverse

in part.

Background. "We summarize the facts from the pleadings and

attached documentary evidence before the Superior Court."

Bristol Asphalt Co. v. Rochester Bituminous Prods., Inc., 493

Mass. 539, 542 (2024) (Bristol Asphalt). The defendant worked

at the front desk of an apartment complex where the plaintiff

lived; the defendant also had a second job as a public school

crossing guard. Building residents complained to the defendant

and management about the plaintiff's behavior, and the plaintiff was subsequently evicted for material noncompliance with her

lease. After the eviction, the defendant reported an incident

to the Newton police in which the plaintiff allegedly drove

through the intersection where the defendant was working as a

crossing guard, nearly striking her. The district attorney's

office brought a criminal case against the plaintiff for assault

with a motor vehicle; as a result, the plaintiff's driver's

license was suspended. At trial in the criminal case, the

defendant testified and submitted a victim impact statement.

The plaintiff was found not guilty.

The plaintiff commenced this action on June 20, 2023,

alleging malicious prosecution based on the defendant's report

to the police and the subsequent criminal proceeding; two counts

of slander, the first based on statements to the management

office of the plaintiff's apartment building, and the second

based on a statement allegedly made by the defendant to a court

officer before the trial of the criminal case; and intentional

infliction of emotional distress based on all of the foregoing

acts.

The defendant filed a special motion to dismiss pursuant to

G. L. c. 231, § 59H, claiming the plaintiff's suit was based

solely on the defendant's protected petitioning activities. In

denying the motion, the judge acknowledged that the defendant's

reports to the police and her trial testimony were "core

2 petitioning activities," but found that the plaintiff's lawsuit,

viewed as a whole, was "not aimed solely" at this activity, so

dismissal was not warranted.1

Discussion. "[T]here is a right to interlocutory appellate

review from the denial of a special motion to dismiss filed

pursuant to the anti-SLAPP statute." Fabre v. Walton, 436 Mass.

517, 521-522 (2002). "[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). See Bristol

Asphalt, 493 Mass. at 560-562.

The simplified anti-SLAPP framework, set forth in Bristol

Asphalt, 493 Mass. at 547-557, applies here. See Columbia Plaza

Assocs., 493 Mass. at 578. It has two stages. Bristol Asphalt,

supra at 555-557. In the first, the movant 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

1 The defendant also filed a separate motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), which the judge addressed in the same order that addressed the defendant's special motion to dismiss. The defendant's notice of appeal purports to appeal from the entire order, but she makes no arguments directed toward the denial of her rule 12 (b) (6) motion and moreover, she has no right to an interlocutory appeal from the denial of that motion. Accordingly, we do not address whether the defendant's rule 12 (b) (6) motion was properly denied.

3 addition to the petitioning activities." Id. at 555-556,

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, supra at 551. For each count, "if

this showing is not made, the special motion must be denied" as

to that count. Wenger v. Aceto, 451 Mass. 1, 5, 9 (2008).

"If the threshold showing is made, the second stage of

analysis follows." Bristol Asphalt, 493 Mass. at 556. If a

claim is "based solely on the special motion proponent's

petitioning activity, the burden shifts to the special motion

opponent." Columbia Plaza Assocs., 493 Mass. at 577. "To

defeat the motion . . . , 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." Id. See

G. L. c. 231, § 59H.

At this second stage, "[t]he critical determination is not

whether the petitioning activity in question [was] successful,

but whether it contain[ed] any reasonable factual or legal merit

at all." Wenger, 451 Mass. at 7. We consider "the pleadings

and supporting and opposing affidavits stating the facts upon

which the liability or defense is based." G. L. c. 231, § 59H.

4 "[T]he evidentiary support in favor of the special motion

proponent's petitioning activity must be quite limited in order

for a special motion opponent to satisfy the 'devoid of any

reasonable factual support' standard. The legal basis for a

special motion proponent's petitioning activity likewise need

only be 'arguable.'" Bristol Asphalt, 493 Mass. at 558. See

"In ruling on a § 59H motion, the judge's role is not to

decide whether the opponent's pleading . . . plausibly suggests

an entitlement to relief so as to withstand a motion to dismiss

under Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974)." O'Gara

v. St. Germain, 91 Mass. App. Ct. 490, 496 (2017). The "focus

must be solely on 'the conduct complained of'" (citation

omitted). Id.2

1. Count I (malicious prosecution). Protected petitioning

activity includes, among others, "any written or oral statement

made before or submitted to a legislative, executive, or

judicial body" as well as "any written or oral statement made in

connection with an issue under consideration or review by a

2 The defendant also included arguments directed to the "second path" in Blanchard v. Steward Carney Hosp., 477 Mass. 141, 155-156 (2017), which was available before the Bristol Asphalt decision. See Bristol Asphalt, 493 Mass. at 552-553. As this path is no longer available, we do not consider these arguments.

5 . . . judicial body." G. L. c. 231, § 59H. "[T]he statute

provides broad protections for individuals who exercise their

right to petition from harassing litigation." Fabre, 436 Mass.

at 520. In determining whether statements constitute

petitioning, "we consider them in the over-all context in which

they are made." North Am. Expositions Co. Ltd. Partnership v.

Corcoran, 452 Mass. 852, 862 (2009).

Here, as the judge correctly recognized, the defendant met

her threshold burden. The defendant's "involvement in [the]

reporting of crimes to the police plainly comes within the scope

of petitioning." Benoit v. Frederickson, 454 Mass. 148, 153

(2009). The defendant's testimony and victim impact statement

were "made before [and] submitted to a . . . judicial body."

G. L. c. 231, § 59H. Cf. Dickey v. Warren, 75 Mass. App. Ct.

585, 589 (2009) (threshold burden met where defamation suit was

based only on statements made at condemnation hearing). The

malicious prosecution count was "based on [these] petitioning

activities alone." Bristol Asphalt, 493 Mass. at 555.

The burden then shifted to the plaintiff to show "by a

preponderance of the evidence that the petitioning activities

lacked any reasonable factual support or arguable legal basis."

Bristol Asphalt, 493 Mass. at 563. The plaintiff did not carry

her burden. The police report and the defendant's victim impact

statement included a detailed account of the history between the

6 parties and the alleged assault; the plaintiff provided no

affidavits or evidence to show that the defendant's recounting

lacked an objectively reasonable basis. See Benoit, 454 Mass.

at 153-154 (defendant "entitled to have special motion to

dismiss allowed" when plaintiff's affidavit did not rebut

allegations made in police report); Gillette Co. v. Provost, 91

Mass. App. Ct. 133, 138-139 (2017) (no reasonable basis where

complaint was "bare bones," many allegations were made on

"information and belief," and special motion opponent provided

detailed evidentiary support to counter).

"The fact that the incident[] [was] resolved in the

plaintiff['s] favor . . . does not mean that there was no

colorable basis for" the defendant's report to the police or her

victim impact statement. Donovan v. Gardner, 50 Mass. App. Ct.

595, 600 (2000). Here, where a judicial officer found probable

cause to issue the assault charge, the criminal complaint cannot

be said to have been "devoid of any reasonable factual support

or any arguable basis in law." G. L. c. 231, § 59H. The

plaintiff "did not show by a preponderance of the evidence that

the defendant[] lacked any reasonable factual support for [her]

petitioning activity." Benoit, 454 Mass. at 154. "Because the

plaintiff[] failed to show that the petitioning activity in

issue was devoid of any reasonable factual basis or basis in

law, it is not necessary to reach the question whether the

7 activity caused the plaintiffs actual injury." Office One, Inc.

v. Lopez, 437 Mass. 113, 124 (2002). We reverse the denial of

the special motion to dismiss count one.

2. Count II (slander, statements to building management).

The motion judge correctly found that the defendant's statements

to building management do not constitute petitioning activity

"made before or submitted to" a government body or proceeding.

G. L. c. 231, § 59H. The issue is whether these statements

qualify as petitioning activity under the other categories in

§ 59H. They do not. "[C]laims sought to be dismissed pursuant

to a special motion must be 'based on said party's exercise of

its right to petition'" under the Federal or State constitution

and the "right of petition contemplated by the Legislature is

. . . one in which a party seeks some redress from the

government" (citations and quotations omitted). Global NAPs,

Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600, 605-

606 (2005).

Here, although the defendant transmitted information to her

employer, it was building management, not the defendant, that

initiated the eviction process against the plaintiff.3 In the

3 Count II alleges the slander "interfere[d] with [the plaintiff's] rights as a tenant" but also suggests it occurred after the date the summary eviction proceeding concluded. Whether the statements were made before or after the eviction proceeding, they were not made "in connection with an issue

8 circumstances, we have little difficulty concluding that the

defendant "was not seeking from the government any form of

redress for a grievance of [her] own or otherwise petitioning on

[her] own behalf," and that, therefore, she "was not exercising

[her] 'right of petition under the [C]onstitution' within the

meaning of the statute." Kobrin v. Gastfriend, 443 Mass. 327,

330 (2005), quoting G. L. c. 231, § 59H. See Wynne v. Creigle,

63 Mass. App. Ct. 246, 253 (2005) ("the protection of the

statute extends only to petitioning in the constitutional sense,

that is, activities that involve a seeking from the government

of the redress of one's own grievances or otherwise petitioning

on one's own behalf"). "[T]hat a statement concerns a topic

that has attracted governmental attention, in itself, does not

give that statement the character contemplated by the statute."

Global NAPs, Inc., 63 Mass. App. Ct. at 605. Because the

alleged slander was not petitioning activity under § 59H, the

defendant "cannot make the requisite threshold showing," and the

special motion to dismiss was properly denied. Bristol Asphalt,

493 Mass. at 556.

3. Count III (slander, statement to court officer). As

for count III, the defendant did not meet her threshold burden.

under governmental consideration or review." Kalter v. Wood, 67 Mass. App. Ct. 584, 588 (2006). See G. L. c. 231, § 59H.

9 To constitute petitioning, "a communication must be 'made to

influence, inform, or at the very least, reach governmental

bodies — either directly or indirectly.'" Blanchard v. Steward

Carney Hosp., 477 Mass. 141, 149 (2017), abrogated on other

grounds by Bristol Asphalt, 493 Mass. at 542, quoting North Am.

Expositions Co. Ltd. Partnership, 452 Mass. at 862 (2009). When

communications are not made directly to the governmental body

considering an issue, "courts look to objective indicia of a

party's intent to influence a governmental proceeding."

Blanchard, supra. See North Am. Expositions Co. Ltd.

Partnership, supra at 862-863 (petitioning activity found where

context suggested it was intended to influence governmental

body).

Although the defendant's statement to the court officer was

made during the plaintiff's criminal trial, it was a "tangential

comment" that was not "related to the petitioning process."

Global NAPs, Inc., 63 Mass. App. Ct. at 606. The comment was

separate from the defendant's testimony and victim impact

statement, an "incidental observation[] that [was] not tied to

the petitioning activity in a direct way." Id. at 607. See

Burley v. Comets Community Youth Ctr., Inc., 75 Mass. App. Ct.

818, 823 (2009) (statements to private parties not petitioning

activity where moving party failed to show that "such statements

were essentially 'mirror images' of those communicated to the

10 police and the court" or that they "were made in conjunction

with . . . protected petitioning activity [for example, to

facilitate further consideration and response by the police]").

The judge correctly denied the special motion to dismiss count

III.

4. Count IV (intentional infliction of emotional

distress). Although this count incorporates the allegations of

count I, which we have concluded constituted petitioning

activity, it also incorporates the allegations of counts II and

III, which we have concluded do not challenge petitioning

activity. It follows that count IV has a "substantial basis" in

conduct "other than . . . petitioning activities." Duracraft

Corp., 427 Mass. at 168. The judge correctly denied the special

motion to dismiss count IV. See Columbia Plaza Assocs., 493

Mass. at 577 ("[I]f the special motion proponent cannot

demonstrate that the claim is based solely on the proponent's

own petitioning activity, the special motion must be denied").

Conclusion. We reverse so much of the December 4, 2023

order as denied the special motion to dismiss count I of the

plaintiff's amended complaint and remand for the entry of an

order dismissing count I. We affirm so much of the order as

denied the special motion to dismiss counts II, III, and IV. To

the extent the defendant appeals from so much of the order as

denied her motion to dismiss pursuant to Mass. R. Civ. P.

11 12 (b) (6), it is not subject to interlocutory review and that

aspect of the appeal is dismissed. The matter is remanded for

further proceedings consistent with this decision.

So ordered.

By the Court (Sacks, Shin & Hershfang, JJ.4),

Clerk

Entered: January 2, 2025.

4 The panelists are listed in order of seniority.