477 Harrison Ave., LLC v. JACE Boston, LLC

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SJC-12150

477 HARRISON AVE., LLC vs. JACE BOSTON, LLC, & another.1

Suffolk. January 5, 2017. - May 23, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &

Budd, JJ.2

"Anti-SLAPP" Statute. Constitutional Law, Right to petition

government. Practice, Civil, Motion to dismiss. Abuse of

Process. Consumer Protection Act, Unfair or deceptive act.

Civil action commenced in the Superior Court Department on

March 23, 2015.

A special motion to dismiss was heard by Dennis J. Curran,

J.

The Supreme Judicial Court granted an application for

direct appellate review.

Mark S. Furman (Emily C. Shanahan also present) for the

defendants.

Andrew E. Goloboy (Ronald W. Dunbar, Jr., also present) for

the plaintiff.

1

Arthur Leon.

2

Justice Botsford participated in the deliberation on this

case prior to her retirement.

2

LENK, J. This case involves the application of G. L.

c. 231, § 59H, the "anti-SLAPP" statute, to a dispute between

adjoining building owners. In 2011, the plaintiff purchased a

parcel of property located at 477 Harrison Avenue in Boston with

the goal of redeveloping it. The defendants own an abutting

parcel.3 Over the course of the next several years, the

defendants opposed the plaintiff's redevelopment plans in

various legal and administrative arenas. The plaintiff

eventually filed a complaint against the defendants, raising

claims of abuse of process and a violation of G. L. c. 93A,

§ 11. The defendants responded by filing a special motion to

dismiss pursuant to G. L. c. 231, § 59H. A Superior Court judge

denied the motion, the defendants appealed, and we allowed their

application for direct appellate review.

We consider first whether the defendants have met their

threshold burden under the anti-SLAPP statute of showing that

each claim is solely based on the defendants' petitioning

activity. See Duracraft Corp. v. Holmes Products Corp., 427

Mass. 156, 167 (1998) (Duracraft). We conclude that they have

done so as to the abuse of process claim, but not as to the

G. L. c. 93A claim. The judge correctly denied the special

3

Although Arthur Leon is the sole owner of JACE Boston,

LLC, we refer to him and JACE Boston, LLC, as the "defendants"

throughout the opinion for the sake of convenience. We denote

Leon separately in instances where the plaintiff alleges that

Leon personally engaged in a course of conduct.

3

motion to dismiss the latter claim. The defendants having met

their threshold burden as to the abuse of process claim,

however, the burden then shifts to the plaintiff to show that

the petitioning activity on which that claim is based lacks a

reasonable basis in law or fact and has caused it actual injury,

i.e., is not a valid exercise of the right to petition. On the

record before the motion judge, who did not reach the issue, it

is evident that only a portion of the defendants' petitioning

activity that forms the basis for the plaintiff's abuse of

process claim was shown to lack such a reasonable basis. Given

this, predating today's decision in Blanchard v. Steward Carney

Hospital, Inc., 477 Mass. , (2017) (Blanchard), the

plaintiff could proceed on only so much of its abuse of process

claim as alleges the invalid exercise of the right to petition,

with the remainder dismissed pursuant to the special motion.

Notwithstanding this, however, in light of Blanchard, which

augments the Duracraft framework, we remand the matter to the

Superior Court. The plaintiff will then have the opportunity to

show that the entirety of its abuse of process claim was not

primarily brought to chill the defendants' legitimate

petitioning activity. A successful showing in this regard will

defeat in full the special motion to dismiss.

1. Background. We summarize the relevant facts from the

pleadings and affidavits that were before the motion judge. See

4

Benoit v. Frederickson, 454 Mass. 148, 149 (2009). In December

of 2011, the plaintiff purchased a parcel of property located at

477 Harrison Avenue (477 Harrison) containing a five-story brick

building with the intent to redevelop it for residential use.

In preparation for this redevelopment, the plaintiff's building

manager, John Holland, met with Arthur Leon, the sole owner of

JACE Boston, LLC, which owned the building at 1234 Washington

Street (1234 Washington) that shared a wall with the plaintiff's

building.4 According to the plaintiff, Leon asked Holland to

delay the redevelopment of 477 Harrison so that the defendants

could redevelop 1234 Washington. Richard J. Leon attested that

his cousin, the defendant Leon, told him of "his intention to

wait [the plaintiff] out until [the plaintiff] fell into

bankruptcy on the loan and that [he] would then purchase

477 Harrison Avenue from the bank for" a fraction of what the

plaintiff paid to purchase the property.5 The plaintiff did not

accede to Leon's purportedly requested delay.

Years of conflict between the parties followed. The first

front in the ongoing struggle opened with the plaintiff's

4

The plaintiff alleges that Holland met with Leon after he

learned that Leon had engaged in a protracted effort to obstruct

another abutting developer's redevelopment plans. The record

contains an abuse of process claim filed against the defendants

by that developer. It also contains an order denying the

defendants' subsequent special motion to dismiss the developer's

claim.

5

The defendants deny that Leon made these comments.

5

request for zoning relief in early 2012. When the plaintiff

sought such relief from the zoning board of appeal of Boston

(ZBA), Leon's attorney contacted the ZBA on his behalf to oppose

it. Despite this, the ZBA unanimously voted to grant the

plaintiff's requested variances and conditional use permits.

The defendants appealed from the ZBA's decision in August of

2012. During the same time frame, the plaintiff also requested

a small project review of its redevelopment proposal from the

Boston Redevelopment Authority (BRA). Leon wrote to the BRA to

oppose this.

During the summer of 2012, the defendants brought a

declaratory judgment action regarding rights to the parties'

shared wall. The defendants' claim rested on an indenture and

agreement dated June, 1926, which provides that the owner of the

"garage building" then under construction at 1234 Washington

Street would have the "right and easement" "to tie unto and to

use for the support of said garage building the northeasterly

wall . . . of the stable" then at 477 Harrison Avenue "to a

height not exceeding two stories nor more than thirty four feet

above the line of the present curbstone at the westerly corner

of Harrison Avenue and Perry Street." In September, 2014, a

Superior Court judge ruled that this agreement referenced the

parties' respective buildings, and that it precluded the

6

plaintiff from demolishing the party wall between the two

properties below the height specified in the agreement.

With these matters pending and its redevelopment plans

thereby stalled, the plaintiff opted for what it hoped would be

a faster path forward. In September, 2013, as the parties'

summary judgment motions awaited resolution in the Superior

Court, the plaintiff abandoned its request for zoning relief,

then on appeal, to pursue instead an "as of right project."6 The

plaintiff obtained a short form building permit from the

inspectional services department (ISD) in October of 2013, from

which the defendants promptly appealed. Armed with the permit,

however, the plaintiff notified the defendants that it intended

to commence work on the parties' shared wall in late

November, 2013. The defendants immediately sought a preliminary

injunction to prevent the plaintiff's construction. Rejecting

the defendants' application for equitable relief, a Superior

Court judge instead entered an order allowing the plaintiff to

remove the undisputed portions of the wall. In the meantime,

the ISD issued the plaintiff a permit allowing it to trespass on

the defendants' property for the purpose of protecting the roof

of the defendants' building during the removal of the undisputed

portions of the wall.

6

The new proposal, which omitted the lucrative penthouses

initially planned for the project, required only a conditional

use permit.

7

And with that, the plaintiff finally began redeveloping its

property in January, 2014, two years after it initially had told

Leon about its plans. Prior to commencing construction, the

plaintiff provided the defendants with copies of the ISD short

form permit, the order from the judge permitting removal of the

undisputed portions of the wall, project plans, and an insurance

certificate. The defendants again sought injunctive relief to

prohibit the plaintiff from entering onto their property, and a

Superior Court judge again denied the relief sought. The judge

also issued an order expressly allowing the plaintiff to enter

onto the defendants' property to protect it from damage.

As the construction began, the conflict continued,7 coming

to a climax in December, 2014. At that time, Leon filed a

police report reflecting that Holland's employees were standing

on the defendants' roof and thereafter brought an application

for a criminal complaint alleging that Holland had trespassed

illegally on his property.8 The clerk magistrate at the Boston

Municipal Court found insufficient probable cause to support the

charge, and dismissed the complaint. In January, 2015, the

7

Apart from the litigation and the administrative disputes,

the defendants also filed claims with the plaintiff's insurer in

May and December, 2014, against the plaintiff's construction

company, asserting damage to the defendants' property.

8

The criminal complaint indicates that Arthur Leon told

police that "[the plaintiff's construction workers] ha[d] left

construction equipment on his roof, [including] nails,

construction debris, and [that the workers] had used chemicals

on the building."

8

plaintiff again sought to construct penthouses on its property,

and requested the requisite zoning relief from the ZBA. The

defendants provided a written opposition, but the ZBA granted

the plaintiff its requested relief. The defendants once again

appealed from this determination to the Superior Court.

Shortly thereafter, and more than three years after the

plaintiff first had begun pursuing its redevelopment plans, the

plaintiff filed a complaint against the defendants in the

Superior Court, claiming abuse of process and a violation of

G. L. c. 93A, § 11. With regard to the abuse of process claim,

the plaintiff maintained that the defendants "wrongfully used

process for ulterior purposes, including" delaying or preventing

the development of the plaintiff's property so that the

defendants could (1) "bankrupt 477 Harrison Ave., LLC and

purchase [it] from the bank at a discount price"; (2) develop

their own property at 1234 Washington Street prior to the

development of the plaintiff's property; (3) gain leverage over

the plaintiff to coerce it into removing any windows providing

views over the defendants' property at 1234 Washington Street;

and (4) extort the plaintiff into paying off the defendants.

The plaintiff also alleged that the defendants' actions

constituted "unfair or deceptive acts or practices and/or unfair

competition in violation of [G. L. c. 93A] and the Attorney

General's regulations promulgated thereunder."

9

In response to the plaintiff's complaint, the defendants

filed a special motion to dismiss pursuant to the anti-SLAPP

statute. A Superior Court judge denied the special motion,

concluding that the defendants "[could not] meet their burden

under [the anti-SLAPP statute] to establish that the plaintiff's

suit [was] solely based on their petitioning activity and [had]

no other substantial basis [emphasis in original]."

2. Discussion. The defendants maintain that they have met

their threshold burden and that the plaintiff has not then

shown -- as it must under Duracraft, 427 Mass. at 167, in order

to defeat the special motion to dismiss -- that the defendants'

petitioning activity lacked a reasonable factual or legal basis.

They argue that the judge accordingly erred in denying their

special motion to dismiss. The defendants are correct only in

part. They have met their threshold burden as to the abuse of

process claim but not as to the G. L. c. 93A claim, and the

judge correctly denied the motion as to the latter claim. As to

the abuse of process claim, the defendants are correct that the

plaintiff has not shown that the entirety of the defendants'

petitioning activities of which the plaintiff complains lack a

reasonable basis in law or fact. However, given our recent

decision in Blanchard, augmenting the Duracraft framework, the

matter must be remanded to afford the plaintiff an opportunity

10

to show that its abuse of process claim is nonetheless not a

"SLAPP" suit. See Blanchard, 477 Mass. at .

a. Special motion to dismiss. The anti-SLAPP statute

provides a "procedural remedy for early dismissal of" "lawsuits

brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and petition for the

redress of grievances" (citation omitted). Duracraft, 427 Mass.

at 161. That remedy is the special motion to dismiss, which

allows a special movant to seek dismissal of "civil claims,

counterclaims, or cross claims" based solely on its exercise of

the right of petition. See G. L. c. 231, § 59H. To prevail on

this motion, the burden falls first on the special movant, here

the defendants, to "make a threshold showing through pleadings

and affidavits that the claims against it 'are "based on" [its]

petitioning activities alone and have no substantial basis other

than or in addition to the petitioning activities.'" See

Blanchard, 477 Mass. at , quoting Fustolo v. Hollander, 455

Mass. 861, 865 (2010).

If the special movant is able to make this showing, the

burden shifts to the nonmoving party, here the plaintiff, to

defeat the special motion to dismiss. Following today's

decision in Blanchard, the nonmoving party can now meet its

second stage burden in two ways. It may first establish "by a

preponderance of the evidence that the [special movant] lacked

11

any reasonable factual support or any arguable basis in law for

its petitioning activity," Baker v. Parsons, 434 Mass. 543, 553-

554 (2001), and that the petitioning activity caused the

nonmoving party "actual injury" -- i.e., that its petitioning

activity is illegitimate. G. L. c. 231, § 59H. If the

nonmoving party cannot make this showing, it may then attempt to

meet its burden under the augmented Duracraft framework as set

out in Blanchard by showing that its claim was not "brought

primarily to chill," see Blanchard, 477 Mass. at , quoting

Duracraft, 427 Mass. at 161, the special movant's legitimate

petitioning activities but rather "to seek damages for the

personal harm to [it] from [the] defendants' alleged . . .

[legally transgressive] acts." See Blanchard, supra at ,

quoting Sandholm v. Kuecker, 2012 IL 111443 ¶ 57.

b. Defendants' threshold burden. In order to meet its

threshold burden, the special movant must demonstrate that the

nonmoving party's claims are "solely based on" the special

movant's petitioning activities (emphasis and quotations

omitted). Duracraft, 427 Mass. at 165. A special movant's

motivation for engaging in petitioning activity does not factor

into whether it has met its threshold burden. See Office One,

Inc. v. Lopez, 437 Mass. 113, 122 (2002). Rather, the key

inquiry here is whether "the only conduct complained of is . . .

petitioning activity." Fabre v. Walton, 436 Mass. 517, 524

12

(2002). In assessing the conduct that is complained of, a judge

considers only the allegations that are relevant to the discrete

causes of action brought.

i. The abuse of process claim. An abuse of process claim

involves three elements: "[1] that process was used, [2] for an

ulterior or illegitimate purpose, [3] resulting in damage"

(quotations and citation omitted). Millennium Equity Holdings,

LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). The tort "has been

described as a 'form of coercion to obtain a collateral

advantage, not properly involved in the proceeding itself, such

as the surrender of property or the payment of money.'"

Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000), quoting

Cohen v. Hurley, 20 Mass. App. Ct. 439, 442 (1985). Given that

the invocation of process necessarily constitutes petitioning

activity for the purposes of the anti-SLAPP statute, see G. L.

c. 231, § 59H (petitioning activity includes "any written or

oral statement made before or submitted to a legislative,

executive, or judicial body, or any other governmental

proceeding"), an actionable abuse of process claim will always

be, at least in part, based on a special movant's petitioning

activities.

As we noted in Fabre, however, this does not mean that an

abuse of process claim will always be solely based on a special

movant's petitioning activities. See Fabre, 436 Mass.

13

at 524 n.10. Although a party's invocation of process alone may

give rise to a colorable abuse of process claim in certain

circumstances, see, e.g., Carroll v. Gillespie, 14 Mass. App.

Ct. 12, 26 (1982) (upholding abuse of process claim where

automobile repair shop owner filed criminal complaint against

customer to pressure her to pay repair bill), a cognizable claim

can also involve a subsequent misuse of such process by the

offending party that is not itself petitioning activity. See

Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. 557, 558 (1988)

("subsequent misuse of the process . . . constitutes the

misconduct for which liability is imposed" [citation omitted]).

See also Adams v. Whitman, 62 Mass. App. Ct. 850, 855-856

(2005), and cases cited (discussing these two types of abuse of

process claims). For example, a party's attempt to use an

invocation of process to extort an opposing party constitutes a

substantial nonpetitioning basis for an abuse of process claim.

See, e.g., Keystone Freight Corp. v. Bartlett Consol., Inc.,

77 Mass. App. Ct. 304, 315-316 (2010). Subsequent misuse of

process, as long it as it is not also petitioning activity, may

thus provide a nonpetitioning basis for a nonmoving party's

abuse of process claim. The question here then is whether the

plaintiff alleges that the defendants engaged in any conduct

germane to its abuse of process claim, apart from their

14

invocations of process, which can provide a "substantial basis"

for its claim.

The plaintiff avers that its abuse of process claim rests

on two grounds other than the defendants' invocations of

process: (1) the two insurance claims filed by the defendants

against the plaintiff's construction company; and (2) Leon's

alleged statements indicating an ulterior motive behind the

defendants' use of process. Neither of these, however,

constitutes substantial nonpetitioning bases for the plaintiff's

abuse of process claim.

The defendants' allegedly false insurance claims fail to

provide a substantial nonpetitioning basis for the plaintiff's

abuse of process claim because they do not bear any apparent

relation to it. Filing an insurance claim does not constitute

process in and of itself, see Jones v. Brockton Pub. Mkts.,

Inc., 369 Mass. 387, 390 (1975) (process defined as "the papers

issued by a court to bring a party or property within its

jurisdiction"), and the defendants do not suggest any connection

between the insurance claims and the defendants' use of process.

As such, the insurance claims do not support the plaintiff's

claim of abuse of process.

Although Leon's statements have obvious relevance to the

second element of the tort (use of process for an ulterior or

illegitimate purpose), the inquiry here is not as to the

15

sufficiency of the complaint under Mass. R. Civ. P. 12 (b) (6),

365 Mass. 754 (1974). The inquiry instead is whether, in

connection with the statutory special motion to dismiss, the

defendants have satisfied their threshold burden, an inquiry

that focuses on the actual conduct complained of, and not the

defendants' motivations for engaging in it. See Fabre, 436

Mass. at 523-524 (special movant's purported statements

suggesting ulterior motivation behind petitioning activity did

not provide "substantial basis other than or in addition to the

petitioning activities implicated" [emphasis in original;

citation omitted]). See also North Am. Expositions Co. Ltd.

Partnership v. Corcoran, 452 Mass. 852, 863 (2009) ("the fact

that . . . speech involves a commercial motive does not mean it

is not petitioning"); Office One, Inc., 437 Mass. at 122 (focus

in initial stage of anti-SLAPP inquiry is "on the conduct

complained of, and, if the only conduct complained of is

petitioning activity, then there can be no other 'substantial

basis' for the claim" regardless of the "motive behind [the]

petitioning activity" [emphasis and citation omitted]).

Otherwise put, the focus at the threshold burden stage is on

whether the conduct complained of consists only of the

defendants' petitioning activity; here, the only conduct

complained of is the process the defendants used. Although the

statements at issue may explain the motivation behind the

16

defendants' use of process, they are not themselves the conduct

on which the plaintiff rests its abuse of process claim and,

accordingly, cannot provide a substantial nonpetitioning basis

for that claim.9 The defendants have met their threshold burden

as to the plaintiff's abuse of process claim.10

ii. Chapter 93A claim. The plaintiff's G. L. c. 93A claim

is based on the same factual allegations as the plaintiff's

abuse of process claim. The predicate for a G. L. c. 93A claim

differs in material respects, however, from that of an abuse of

process claim, and rests here in part on acts that are not

petitioning activities. Because the plaintiff's allegation that

the defendants filed two false insurance claims against the

plaintiff's construction company provides a substantial

nonpetitioning basis for its G. L. c. 93A claim, the defendants

9

The outcome might well be different if Leon's statements

themselves constituted the underlying conduct upon which the

plaintiff's claim rested. For example, an allegation that Leon

had stated to the plaintiff that he would continue invoking

process unless the plaintiff paid him a certain amount of

money -- i.e., made a statement in an attempt to extort the

plaintiff through his use of process -- could provide a

substantial nonpetitioning basis for the plaintiff's claim.

10

The plaintiff's contention that its claims are not based

on, but are rather "in response to," the defendants' petitioning

activity is also unavailing. This argument rests on language in

a footnote in Duracraft, 427 Mass. at 168 n.20, stating that, in

the context of the anti-SLAPP statute, "based on" does not mean

"in response to." The remaining language of the note, however,

makes clear that the clause that the plaintiff cites stands only

for the proposition that counterclaims are not automatically

"based on" a special movant's petitioning activity. See id.

17

cannot show that the claim is solely based on their petitioning

activity.

While less than ideally pleaded, the plaintiffs' complaint

unmistakably alleges that the defendants' filing of false

insurance claims against the plaintiff's construction company

formed part of the unfair or deceptive practices that the

defendants engaged in to halt the plaintiff's redevelopment

projects and thereby harm the plaintiff financially.11 See Auto

Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 820

(2014) (plaintiff bringing claim under G. L. c. 93A, § 11, must

demonstrate "(1) that the defendant engaged in an unfair method

of competition or committed an unfair or deceptive act of

practice, as defined by G. L. c. 93A, § 2, or the regulations

promulgated thereunder; (2) a loss of money or property suffered

as a result; and (3) a causal connection between the loss

suffered and the defendant's unfair or deceptive method, act, or

11

The defendants maintain that the insurance claims do not

support the plaintiff's G. L. c. 93A claim because they were

submitted to the plaintiff's construction company's insurance

carrier rather than the plaintiff's insurance carrier. A

special motion to dismiss under the anti-SLAPP statute, unlike a

motion to dismiss brought under Mass. R. Civ. P. 12 (b) (6), 365

Mass. 754 (1974), does not test the sufficiency of the

complaint. Instead a "special movant must take the adverse

complaint as it finds it," see Blanchard, 477 Mass. at , in

order to determine whether it concerns only the defendants'

petitioning activities. Thus, the only relevant inquiry is

whether the complained of conduct relevant to the plaintiff's

discrete cause of action provides a substantial nonpetitioning

basis for the plaintiff's claim.

18

practice" [footnote omitted]); Commonwealth v. Decotis, 366

Mass. 234, 241, 242 (1974) (G. L. c. 93A, § 2, does not provide

definition for "unfair practice," and "[t]he existence of unfair

acts and practices must be determined from the circumstances of

each case"). See also Linkage Corp. v. Trustees of Boston

Univ., 425 Mass. 1, 27, cert. denied, 522 U.S. 1015 (1997) ("[A]

practice is unfair if it is 'within . . . the penumbra of some

common-law, statutory, or other established concept of

unfairness; [i.e.,] is immoral, unethical, oppressive, or

unscrupulous . . .'" [citation omitted]). The allegedly false

insurance claims asserted as part of the G. L. c. 93A claim are

acts distinct from the related but separate assertedly unfair or

deceptive acts concerning the defendants' use of process.

Unlike the use of process, however, the filing of false

insurance claims does not constitute petitioning. Accordingly,

the defendants have failed to meet their threshold burden with

respect to the plaintiff's G. L. c. 93A claim, and the trial

judge's denial of the special motion to dismiss is affirmed with

respect to that count.

c. The plaintiff's second-stage burden. Because the

defendants have met their threshold burden with respect to the

plaintiff's abuse of process claim, the plaintiff may defeat the

special motion to dismiss this claim by demonstrating, "by a

preponderance of the evidence," that the defendants' petitioning

19

activity upon which its abuse of process claim is based is

illegitimate -- i.e., that it "lacked any reasonable factual

support or any arguable basis in law," Baker, 434 Mass. at 553-

555, and caused it "actual injury," G. L. c. 231, § 59H. If it

cannot make this showing, the plaintiff may now also prevail by

establishing to the judge's fair assurance that its abuse of

process claim is not a "SLAPP" suit under the augmented

Duracraft framework -- i.e., "that its primary motivating goal

in bringing its claim, viewed in its entirety, was 'not to

interfere with and burden defendants' . . . petition rights, but

to seek damages for the personal harm to [it] from [the]

defendants' alleged . . . [legally transgressive] acts.'"

Blanchard, 477 Mass. at , quoting Sandholm, 2012 IL 111443 at

¶ 57.

i. Legitimacy of the defendants' petitioning activities.

The plaintiff's abuse of process claim rests on numerous

instances where the defendants employed process and thereby

engaged in petitioning activity. To defeat the special motion

to dismiss, the plaintiff must show that each such instance

lacked a reasonable basis in law or fact. Save for Leon's

application for a criminal complaint against Holland, the

plaintiff has not carried its burden.

We note two relevant considerations in determining whether

this little-discussed second-stage burden has been met. First,

20

a plaintiff cannot meet its burden merely by presenting

affidavits contradicting the factual basis of the special

movant's petitioning activities, see Benoit, 454 Mass. at 154

n.7, or demonstrating that the petitioning activities were

unsuccessful. "The critical determination is not whether the

petitioning activity in question will be successful . . . "; it

is instead whether the petitioning activity "contains any

reasonable factual or legal merit at all." Wenger v. Aceto, 451

Mass. 1, 7 (2008). Second, the defendants' motivation for

engaging in petitioning activity does not factor into whether

their petitioning activity is illegitimate.12 See id. at 8

(nonmoving party's contention that special movant filed criminal

complaint with ulterior motive irrelevant because criminal

complaint had reasonable basis in law). Rather, the relevant

inquiry is whether the plaintiff has demonstrated that the

defendants' petitioning activity lacks an objectively reasonable

basis. See G. L. c. 231, § 59H (inquiry concerns whether

petitioning activity was "devoid of any reasonable factual

support or any arguable basis in law").

12

By contrast, the motivation behind the defendants'

petitioning activities could well be relevant to the inquiry

under the augmented Duracraft framework, discussed infra, as to

whether the plaintiff's abuse of process claim is in fact a

"SLAPP" suit.

21

Our review of the record suggests that the defendants

engaged in six separate instances of petitioning activities:13

(1) the submission of written and oral statements to the BRA and

the ZBA; (2) the filing of the zoning appeals in the Superior

Court in 2012 and 2015; (3) the filing of the declaratory

judgment action with respect to the indenture and agreement;

(4) the filing of the police report; (5) the application for a

criminal complaint against Holland; and (6) the communications

with ISD and various permits granted by ISD. Although the

plaintiff assails the motivation behind all of these activities,

it only challenges the factual and legal basis for two

invocations of process -- Leon's police report and application

for a criminal complaint against Holland for trespassing.

13

The anti-SLAPP statute defines petitioning activities

broadly to include:

"[1] any written or oral statement made before or

submitted to a legislative, executive, or judicial body, or

any other governmental proceeding; [2] 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;

[3] any statement reasonably likely to encourage

consideration or review of an issue by a legislative

executive, or judicial body or any other governmental

proceeding; [4] any statement reasonably likely to enlist

public participation in an effort to effect such

consideration; or [5] any other statement falling within

constitutional protection of the right to petition

government."

G. L. c. 231, § 59H.

22

The plaintiff's argument that Leon's police report lacked a

reasonable basis in fact or law is unavailing. The police

report recounts Leon's observation that the plaintiff's workers

were standing on his roof -- which the record suggests they

were, albeit on planking supported by rubber tires -- and that

they remained there despite his warnings to the plaintiff that

they were trespassing. Given that the record supports this

account of the events, the police report does not itself lack a

reasonable basis in fact or law.

The plaintiff is on firmer ground in his argument

concerning Leon's application for a criminal complaint. The

application was purportedly filed in response to the presence of

the plaintiff's construction workers, along with various

materials and chemicals, on the roof of 1234 Washington Street.

The application for a criminal complaint was dismissed for lack

of probable cause. Although this in and of itself is not fatal

to the defendants' petitioning activity, see Benoit, 454 Mass.

at 153-154, Leon's application for a criminal complaint came

after a Superior Court judge explicitly granted the plaintiff

the affirmative right to trespass on the defendants' property to

protect it from damage. The combination of the lack of probable

cause finding and the Superior Court order supplies the

requisite preponderance of the evidence in favor of the

23

conclusion that the criminal complaint lacked any reasonable

basis in fact or law.

The plaintiff also has demonstrated that the defendants'

application for a criminal complaint caused it actual injury.

Holland stated in an affidavit that he suffered "embarrassment"

from the criminal complaint, that he had to attend a probable

cause hearing, and that he feared for the financial health of

the plaintiff if the complaint had spawned criminal charges.

This is enough to constitute "actual injury" for the purposes of

the anti-SLAPP statute. See Millennium Equity Holdings, LLC,

456 Mass. at 645 (emotional, reputational, and fiscal harms of

malicious prosecution constituted legitimate categories of harm

to plaintiff).

This then presents the novel issue as to whether all or

only some of a special movant's petitioning activities must be

shown to be illegitimate in order to defeat a special motion to

dismiss. The text of the anti-SLAPP statute is silent on the

point, and we look to the intent of the Legislature for insight.

See Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The

legislative purpose of the anti-SLAPP statute is to provide for

the expeditious dismissal of suits targeting the "valid exercise

of the constitutional right[] of . . . petition for the redress

of grievances." See Duracraft, 427 Mass. at 161, quoting 1994

House Doc. No. 1520.

24

Applying this legislative purpose to the case at hand, the

petitioning activity that has been shown to lack a reasonable

basis in law or fact is not the "valid petitioning" that the

statute protects. The situation is different as to the

remaining petitioning activity, which the plaintiff has failed

to show is illegitimate and is therefore presumptively

protected. We therefore determine that the defendants'

legitimate petitioning activity is protected by the statute.

Were we to conclude otherwise, a nonmoving party effectively

could elude the protections of the anti-SLAPP statute if it

could prove that one small portion of a special movant's

petitioning activity was illegitimate. What this means is that,

unless the plaintiff can, on remand, show that the entirety of

its abuse of process claim is not a "SLAPP" suit under the

augmented Duracraft framework, see Blanchard, 477 Mass. at -

,14 it may proceed only on so much of its abuse of process claim

as alleges illegitimate process, i.e., Leon's application for a

14

That the plaintiff only in part met its second-stage

burden of showing that the defendants' petitioning activities

were illegitimate is, however, irrelevant to its burden on

remand under the augmented Duracraft framework as set out in

Blanchard. To meet its new burden on remand, the plaintiff must

show that its primary motivating goal in filing its abuse of

process claim, in its entirety, was not to chill the defendants'

legitimate petitioning activity. See Blanchard, 477 Mass.

at . Moreover, if the plaintiff can make the requisite

showing, then the defendants' motion to dismiss is defeated in

full. Id.

25

criminal complaint. In that event, the special motion to

dismiss such portion of the abuse of process claim arising out

of the defendants' protected petitioning activities shall be

allowed and an appropriate award of attorney's fees and costs

made.15

ii. Remand. In light of our decision in Blanchard, we

remand this case to the Superior Court to allow the plaintiff to

show that its abuse of process claim is not a "SLAPP" suit under

the augmented Duracraft framework. See Blanchard, 477 Mass. at

15

The plaintiff suggests that the "preponderance of the

evidence" standard laid out in Baker, 434 Mass. at 553-555,

violates its right to a jury trial under art. 15 of the

Massachusetts Declaration of Rights ("in all suits between two

or more persons, except in cases in which it has heretofore been

otherways used and practiced, the parties have a right to a

trial by jury"). We discern no merit in the plaintiff's

argument. "The right to a jury trial does not grant to a party

the right to put to a jury any question he or she wishes."

English v. New England Med. Ctr., Inc., 405 Mass. 423, 426

(1989), cert. denied, 493 U.S. 1056 (1990). The right attaches

only to questions of fact material to the merits of a party's

claim. See id. A special motion to dismiss, however, presents

a question of law separate from the merits of the plaintiff's

claim -- the question whether the defendant's complained-of

petitioning activity falls within the protective ambit of the

anti-SLAPP statute. See Benoit, 454 Mass. at 158 n.3 (Cordy,

J., concurring) ("A finding by the judge that the plaintiff has

met his burden and the case can go forward is . . . not a

judgment on the merits of the claim, but rather an evaluation

whether the defendant's prior petitioning activity falls within

the protection of the anti-SLAPP statute"). As with the similar

doctrine of qualified immunity for government officials, the

special motion inquiry is "separate from the merits of the

underlying action . . . even though a reviewing court must

consider the [nonmoving party's] factual allegations in

resolving the . . . issue." See Mitchell v. Forsyth, 472 U.S.

511, 528-529 (1985).

26

- . "It may do so by demonstrating that [its abuse of process

claim] was not primarily brought to chill the special movant's

legitimate petitioning activities," i.e., by establishing, "such

that the motion judge may conclude with fair assurance, that its

primary motivating goal in bringing its [abuse of process

claim], viewed in its entirety, was 'not to interfere with and

burden defendants' . . . petition rights, but to seek damages

for the personal harm to [it] from [the] defendants'

alleged . . . [legally transgressive] acts.'" Id. at ,

quoting Sandholm, 2012 IL 111443 at ¶ 57.

3. Conclusion. The denial of the defendants' special

motion to dismiss is affirmed with respect to the plaintiff's

claim under G. L. c. 93A, § 11, and vacated with respect to its

abuse of process claim. Given that the plaintiff has not

demonstrated that the entirety of the defendants' petitioning

activities lacks a reasonable basis in fact or law, it may

attempt to make the showing outlined in Blanchard, 477 Mass. at

- , upon remand. The matter is remanded to the Superior Court

for further proceedings consistent with this opinion.

So ordered.