The 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
23-P-1311
RYAN WELTER
vs.
WILLIAM WHELAN & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Ryan Welter commenced this action against William Whelan
and associated limited liability corporations (collectively,
defendants) alleging unfair and deceptive acts in violation of
G. L. c. 93A, breach of contract, tortious interference with
established business relations, breach of the covenant of good
faith and fair dealing, and intentional infliction of emotional
distress. A judge of the Superior Court allowed the defendants'
special motion to dismiss filed pursuant to the "anti-SLAPP"
statute, G. L. c. 231, § 59H, and Mass. R. Civ. P. 12 (b) (6),
365 Mass. 754 (1974), and a judgment of dismissal entered.
1 Whelan Associates, LLC; Paramount MOB, LLC; and WAMP LLC.
Welter appeals from the judge's order allowing the special
motion to dismiss and the judgment of dismissal. We affirm.
Background. The facts are derived from the pleadings and
documentary evidence before the Superior Court. Welter is a
physician and principal of Tristan Medical Enterprises, P.C.
(Tristan). In 2017, Tristan entered into a commercial lease
with Paramount MOB, LLC (Paramount) for two medical office
suites in a building in Raynham. Welter personally guaranteed
the lease. In May 2019, Paramount commenced a summary process
action against Tristan in Taunton District Court (Taunton case).
In June 2019, Tristan and Paramount entered into an agreement
for judgment that awarded possession of the property to
Paramount, with the execution to issue immediately but held in
escrow by Paramount's attorney. The agreement allowed Tristan
to continue to occupy the leased premises, so long as it did not
default on future payments. However, if Tristan failed to make
any payment within five days of its due date, Paramount had the
right to serve the execution on Tristan. Tristan failed to pay
rent for the period commencing on August 1, 2019. Paramount
served the execution for possession, and Tristan vacated the
premises on or about August 31, 2019. In December 2019,
Paramount commenced an action for damages under the lease
against Tristan and Welter in Bristol Superior Court (Bristol
case). Paramount prevailed and received a judgment for
2
$577,053.79 in damages, costs, and fees.2 In October 2022,
Welter filed the complaint in the present case. In January
2023, the defendants filed the special motion to dismiss. After
a hearing, the judge allowed the motion.
Discussion. "[R]ulings on anti-SLAPP motions are
appropriately subject to de novo review." Bristol Asphalt Co.
v. Rochester Bituminous Prods., Inc., 493 Mass. 539, 562 (2024)
(Bristol Asphalt). A party may file a special motion to dismiss
if "the 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. A principal purpose of the
anti-SLAPP statute is "to obtain the expeditious dismissal of
meritless claims that are based on petitioning alone." Bristol
Asphalt, supra at 541.
A special motion to dismiss is evaluated in stages. At the
first stage of the analysis, the proponent of the special motion
to dismiss "must show that the [claim] has no substantial basis
in conduct other than or in addition to the special motion
proponent's alleged petitioning activity." Bristol Asphalt, 493
Mass. at 555-556. If the proponent does show that the claim is
2 Although the outcome of the Bristol case (No. 1973CV01139)
was pending when Welter filed this complaint, this court may
take judicial notice of the records of related proceedings in
other courts. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002).
3
based solely on the special motion proponent's petitioning
activity, "the burden shifts to the special motion opponent."
Columbia Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 577
(2024), citing G. L. c. 231, § 59H, first par. At that second
stage, in order to avoid dismissal, "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 at 577.
Here, Welter's complaint alleged that each of his injuries
resulted either from a "contrived eviction" (referring to the
Taunton case) or from a "malicious claim" (the Bristol case).
His claims thus have no substantial basis outside of Paramount's
petitioning activities. See 477 Harrison Ave., LLC v. JACE
Boston, LLC, 477 Mass. 162, 169 (2017), citing G. L. c. 231,
§ 59H (petitioning activity includes "any written or oral
statement made before or submitted to a legislative, executive,
or judicial body").
Moving to the second stage of the analysis, the "reasonable
factual support or arguable basis in law" standard is analogous
to the concept of frivolousness, as both standards resolve the
same essential question. Bristol Asphalt, 493 Mass. at 559-560.
"[A] claim is frivolous if there is an absence of legal or
4
factual basis for the claim, and if the claim is without even a
colorable basis in law." Id. at 560, quoting Fronk v. Fowler,
456 Mass. 317, 329 (2010). Here, Paramount prevailed in both
the Taunton case and the Bristol case. In the Taunton case,
Paramount served the execution for possession of the premises,
following an agreement for judgment, and Tristan vacated the
premises. In the Bristol case, judgment entered for Paramount
and against Tristan for $577,053.79 in damages, costs, and fees.
Therefore, Welter cannot establish a lack of factual support or
arguable basis in law.3
Although Welter's claims are based on Paramount's
petitioning activities alone, his complaint also alleged that
Whelan was the principal owner or "principal decision maker" of
Paramount and the other defendant companies. However, the
complaint contained no plausible allegations pertaining to
Whelan in his individual capacity or to the other companies.
The complaint was thus also properly dismissed with respect to
William Whelan; Whelan Associates, LLC; and WAMP LLC on this
alternative ground. See Iannacchino v. Ford Motor Co., 451
Mass. 623, 636 (2008) ("Factual allegations must be enough to
3 Because we conclude that Welter was unable to satisfy the
first part of his conjunctive obligations, we need not consider
whether Paramount's petitioning activities caused any actual
injury to Welter.
5
raise a right to relief above the speculative level . . .");
Mass. R. Civ. P. 12 (b) (6).4,5
Judgment affirmed.
By the Court (Meade, Blake &
Brennan, JJ.6),
Clerk
Entered: July 26, 2024.
4 "To the extent that we have not specifically addressed
other points made . . . in [the appellant's] brief, they 'have
not been overlooked. We find nothing in them that requires
discussion.'" Commonwealth v. Brown, 479 Mass. 163, 168 n.3
(2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78
(1954).
5 The defendants' request for appellate attorney's fees is
denied.
6 The panelists are listed in order of seniority.
6