defining “sham litigation,” in part, as a lawsuit that is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits”
How later courts described this case
- defining “sham litigation,” in part, as a lawsuit that is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits”
- Superior Court allowed special motion to dismiss filed “three years after the plaintiffs’ complaint was filed” and affirming judge’s decision “that it would be unjust to award these [successful movants] all three years’ worth of discoveiy, because the delay in filing the special motion was unwarranted”
- “The fact that the incidents were resolved in the plaintiffs’ favor ... does not mean that there was no colorable basis for [the defendants’] petitions”
- “a plain reading of the statute entitles a prevailing moving party to an award for all reasonable attorneys’ fees and costs”
Written by the judges who cited it.
The opinion
Brown, J.
(dissenting). The majority has made a dangerous and quite surprising announcement: NIMBY 1 is alive and well in Massachusetts. I respectfully dissent.
By requiring the plaintiffs to pay damages for being harassed by the defendants, this opinion has turned the law on its head. The majority has wrongly concluded that the conduct of the defendants here was entitled to the legislatively created protection of our anti-SLAPP statute, G. L. c. 231, § 59H. I would like to believe the wise pronouncement of former Justice Good *603 man still has meaning: “[I]f it doesn’t make sense, it can’t be the law.” 16 Mass. App. Ct. 1111 , 1125 (June 25, 1983) (Memorial of Justice Reuben Goodman). I would conclude bad faith on the part of the defendants as matter of law, as neither a plausible favorable factual scenario nor a cogent legal ground can be gleaned from this record.
Here, the defendants’ intentions could not have been clearer; their meritless claims against the plaintiffs were not merely transparent, but were foredoomed.
In my view, this case is controlled by our holding in Vittands v. Sudduth, 49 Mass. App. Ct. 401, 413-415 (2000). “Even if [I] were to assume . . . that the neighbors had met their burden [which in my view, they have not] as the special movant, [the plaintiffs] nonetheless met [their] own statutory burden of showing that the neighbors’ suit was devoid of reasonable factual or legal support.” Id. at 414 . They and their counsel had to have been aware that the likelihood of the defendants prevailing on the merits was zero as this court had said as much in its 1991 decision. As an aside, it is well known that the possibility of upsetting a variance is real, but the prospect of upsetting a special permit in circumstances, as here, is nil. The plaintiffs also demonstrated the defendants’ acts caused them injury. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 168 (1998). In short, the defendants’ counsel took a position that is beyond reasonable or thoughtful legal analysis.
One additional comment is warranted. Even if some of the causes of action pleaded by the plaintiffs may, as the majority notes, be time-barred, I believe the underlying events may still be relied on as evidence of the defendants’ true intentions and their state of mind.
“This is yet another painful example of how ‘courts are too frequently called upon to expend the[] limited resources [available] to assist the needy by the machinations of the [selfish and] greedy.’ ” Long v. Martha’s Vineyard Land Bank Commn., 35 Mass. App. Ct. 546 , 550 (1993) (Brown, J., concurring), quoting from Piccicuto v. Dwyer, 32 Mass. App. Ct. 137, 140 (1992).
Not in my backyard.