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
24-P-267
LYNN ALLEGAERT, trustee,1
vs.
HARBOR VIEW HOTEL OWNER, LLC & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff-in-counterclaim, Harbor View Hotel Owner,
LLC, (Harbor View) filed an abuse of process counterclaim
against the defendant-in-counterclaim, Lynn Allegaert. A judge
of the Superior Court denied Allegaert's special motion to
dismiss the counterclaim pursuant to the anti-SLAPP statute,
G. L. c. 231, § 59H. Allegaert appeals from the order denying
her special motion to dismiss. We reverse.
Discussion. The following facts are derived from the
pleadings and documentary evidence before the Superior Court.
Allegaert owns a residential property that abuts the Harbor View
1 Of the Lynn Allegaert Revocable Trust.
2 Zoning board of appeals of Edgartown.
Hotel in Edgartown. In 2008, the zoning board of appeals of
Edgartown (board) granted a special permit to Harbor View and,
in 2018 and 2023, modified the special permit. The project for
which Harbor View sought the permit involved the demolition and
reconstruction of three cottages and the construction of a new
cottage. In 2023, Allegaert filed a complaint challenging the
2023 modification of the special permit. The complaint asserted
that the 2023 modification was an abuse of discretion in
violation of G. L. c. 40A, § 17. Allegaert also sought recovery
for detrimental reliance, promissory estoppel, unjust
enrichment, nuisance, and infliction of emotional distress.
Harbor View filed an answer and counterclaim, seeking recovery
against Allegaert for abuse of process in connection with her
claims. Allegaert filed an anti-SLAPP special motion to dismiss
Harbor View's counterclaim, which the judge denied.
We review de novo the ruling on an anti-SLAPP motion to
dismiss. See Bristol Asphalt Co. v. Rochester Bituminous
Prods., Inc., 493 Mass. 539, 560 (2024) (Bristol Asphalt). "[A]
proponent of a special motion to dismiss under [G. L. c. 231,
§ 59H] must make a threshold showing . . . that the claims
against it are based on the [party's] petitioning activities
alone and have no substantial basis other than or in addition to
the petitioning activities" (quotation and citation omitted).
2
Id. at 555. Harbor View does not dispute that its abuse of
process counterclaim is based solely on Allegaert's petitioning
activity.
Once the threshold showing is made, the second stage of
analysis follows, requiring the opponent of the motion to show
that the petitioning activity "was devoid of any reasonable
factual support or any arguable basis in law." Bristol Asphalt,
493 Mass. at 557, quoting G. L. c. 231, § 59H. "Proving
petitioning is 'devoid' of any reasonable factual support or any
arguable basis in law is a difficult task." Id. Claims for
abuse of process "must ordinarily await the outcome of the
lawsuit that they are challenging," because "the claim that is
alleged to lack reasonable basis has not yet been adjudicated."
Hidalgo v. Watch City Constr. Corp., 105 Mass. App. Ct. 148, 153
(2024).
Here, the challenged claims in the lawsuit have not been
resolved, and we cannot conclude at this stage of the
proceedings that Allegaert's claims lack any reasonable factual
support or any arguable basis in law. Thus, we conclude that
Allegaert's special motion to dismiss Harbor View's counterclaim
should have been allowed. We note that at the time the judge
decided the motion, she did not have the benefit of either the
Bristol Asphalt or the Hidalgo decision. The dismissal of
3
Harbor View's abuse of process counterclaim "is not as to the
merits of the claims at this juncture, and is accordingly
without prejudice."3 See Hidalgo, 105 Mass. App. Ct. at 155.
The order denying the special
motion to dismiss is
reversed. A new order
shall enter dismissing the
amended counterclaim for
abuse of process without
prejudice. The matter is
remanded to the Superior
Court for further
proceedings consistent with
the memorandum and order of
the Appeals Court.
By the Court (Grant,
Brennan & Toone, JJ.4),
Clerk
Entered: April 18, 2025.
3 Because the anti-SLAPP statute, G. L. c. 231, § 59H,
requires the award of attorney's fees if the special motion to
dismiss is allowed, see Bristol Asphalt, 493 Mass. at 555, we
remand the matter to the Superior Court for a determination of
Allegaert's request for attorney's fees associated with the
trial court special motion to dismiss.
Allegaert also requests appellate attorney's fees.
Allegaert may file with the clerk of this court a motion for
fees detailing and supporting her request within fourteen days
of the date of this decision. Harbor View shall have fourteen
days thereafter to respond.
4 The panelists are listed in order of seniority.
4