477 Harrison Ave., LLC v. Jace Bos., LLC

• Decision Date: 08 November 2019
• Docket Number: SJC-12600
• Citation: 483 Mass. 514,134 N.E.3d 91
• Parties: 477 HARRISON AVE., LLC v. JACE BOSTON, LLC, & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

483 Mass. 514

134 N.E.3d 91

477 HARRISON AVE., LLC

v.JACE BOSTON, LLC, & another.¹

SJC-12600

Supreme Judicial Court of Massachusetts, Suffolk..

Argued January 8, 2019

Decided November 8, 2019

Andrew E. Goloboy, Boston, for the plaintiff.

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

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

This appeal represents yet another chapter in the ongoing saga involving these adjoining property owners. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 163, 74 N.E.3d 1237 (2017) ( Harrison I ). In March 2015, after skirmishes over a period of years in a variety of forums, the plaintiff developer filed a complaint against the defendant abutters alleging abuse of process and violation of G. L. c. 93A. Id. Sequential duels brandishing the "anti-SLAPP" act, G. L. c. 231, § 59H, followed. Harrison I concerned the abutters' appeal from the denial of their special motion to dismiss the developer's complaint. Harrison I, supra. This clash, in contrast, involves the developer's appeal from the denial of its special motion to dismiss the abutters' amended counterclaims. These amended counterclaims alleged breach of contract, breach of the implied covenant of good faith and fair dealing, abuse of process, and violation of G. L. c. 93A.² We allowed the developer's application for direct appellate review.

The developer maintains on appeal that the motion judge erred in applying the analytical framework devised in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 691 N.E.2d 935 (1998) ( Duracraft ), and augmented in Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 159-161, 75 N.E.3d 21 (2017) ( Blanchard I ), for evaluating anti-SLAPP motions to dismiss. It argues that the judge failed to consider the evidence at each stage of the framework before proceeding to the next, and ultimately in concluding that none of the abutters' four amended counterclaims was a "strategic lawsuit against public participation," known as a "SLAPP" suit. See Blanchard I, supra at 157, 75 N.E.3d 21.

The augmented Duracraft framework was devised to be applied sequentially. That is to say, the moving party (i.e., the party bringing the special motion to dismiss, here, the developer) must demonstrate, at the threshold stage, that the claims filed against it (here, the amended counterclaims) are based solely on the moving party's petitioning activity. If the moving party (here, the developer) satisfies its burden, then the burden shifts to the nonmoving party (here, the abutters) to demonstrate at the second stage that the anti-SLAPP statute, G. L. c. 231, § 59H, does not require dismissal of its claims. The nonmoving party can do so by establishing either that the moving party's petitioning activity was a "sham" and that the nonmoving party (here, the abutters) has been injured as a result, or that its own claims are not SLAPP suits at all, i.e., they are both colorable and nonretaliatory. See Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 204, 130 N.E.3d 1242 (2019) ( Blanchard II ).

Applying the burden-shifting framework in this sequential manner to the developer's anti-SLAPP motion, we conclude that none of the abutters' contract-based counterclaims, including any portion of the counterclaim alleging violation of G. L. c. 93A, is colorable and, therefore, the abutters cannot demonstrate their claims are not SLAPP suits. The counterclaims are based on the flawed premise that an agreement for judgment ordinarily retains independent legal significance after a judgment has entered incorporating the terms of the agreement. The remaining counterclaims, alleging abuse of process and violation of G. L. c. 93A, are based solely on the developer's legitimate petitioning activities. Because they objectively burden the developer's petitioning activities in this action, we conclude that the abutters failed to demonstrate that any of their counterclaims are not retaliatory. See Blanchard I, 477 Mass. at 160, 75 N.E.3d 21. We vacate the order denying the special motion to dismiss the counterclaims, and remand the case for entry of an order allowing the motion and for further proceedings consistent with this opinion.

1. Background. Years of conflict have ensued since the developer purchased the property located at 477 Harrison Avenue in December of 2011. See Harrison I, 477 Mass. at 164-167, 74 N.E.3d 1237. The abutters repeatedly have opposed the developer's attempts to redevelop the property in a variety of legal and administrative venues. Id. at 165, 74 N.E.3d 1237. The parties' efforts and counterefforts were outlined previously, see id. at 164-167, 74 N.E.3d 1237, and it serves no purpose to detail them again here. It is enough to say that, in 2012, the developer successfully obtained zoning relief from the zoning board of appeal of Boston (ZBA). Id. at 165, 74 N.E.3d 1237. The abutters challenged the ZBA's decision in the Superior Court (2012 zoning appeal).

While the 2012 zoning appeal was pending, the abutters commenced a declaratory judgment action concerning an agreement between prior owners of the parties' respective properties (declaratory judgment action). Id. at 165, 74 N.E.3d 1237. After a jury-waived trial, "a Superior Court judge ruled that this agreement ... precluded the [developer] from demolishing the party wall between the two properties below the height specified in the [agreement]." Id. The Appeals Court affirmed the judgment. See JACE Boston, LLC v. Holland Dev., LLC, 89 Mass. App. Ct. 1108, 2016 WL 739637 (2016).

While these matters were pending, "and its redevelopment plans thereby stalled, the [developer] opted for what it hoped would be a faster path forward. In September, 2013, as the parties' summary judgment motions awaited resolution in the [2012 zoning appeal], the [developer] abandoned its request for zoning relief, then on appeal, to pursue instead an ‘as of right project.’ " Harrison I, 477 Mass. at 165, 74 N.E.3d 1237. An agreement for judgment was filed in the Superior Court memorializing the abandonment. Judgment subsequently entered in the 2012 zoning appeal.

Subsequently, the developer began redeveloping the property. Even then, the parties' conflict continued. Id. at 165-166, 74 N.E.3d 1237. In 2014, the developer sought additional zoning variances and a conditional use permit to add more units to the property. After a hearing on March 24, 2015, the ZBA granted the requested relief, and the abutters again appealed (2015 zoning appeal). The day before that hearing, the developer commenced the underlying action against the abutters, alleging abuse of process and a violation of G. L. c. 93A, § 11. Id. at 166, 74 N.E.3d 1237. The abutters responded with a special motion to dismiss both claims, pursuant to the anti-SLAPP statute. Id. at 167, 74 N.E.3d 1237. The judge denied the motion, and the abutters appealed. That appeal was the subject of Harrison I.

While Harrison I was pending, the abutters moved to dismiss the developer's (amended) complaint, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). According to the developer, the abutters essentially claimed that the agreement for judgment in the 2012 zoning appeal precluded the developer from asserting its claims "to the extent they relate to conduct which pre-dated the Agreement for Judgment or to conduct or legal challenges contemplated in it." The Superior Court judge denied the motion. Thereafter, the abutters filed an answer and counterclaims, which they purported to assert "conditionally" pending the outcome of their appeal in Harrison I.

Shortly thereafter, Harrison I was decided. We concluded in that case that the abutters' special motion to dismiss properly was denied as to the developer's G. L. c. 93A claim, because that claim was not based solely on the abutters' petitioning activity, as G. L. c. 231, § 59H, requires. See Harrison I, 477 Mass. at 163, 74 N.E.3d 1237. With respect to the developer's abuse of process claim, however, we vacated the order dismissing the claim and remanded the case for further proceedings in light of the augmented framework announced in Blanchard I, 477 Mass. at 159-161, 75 N.E.3d 21. See Harrison I, supra at 163-164, 74 N.E.3d 1237. Following remand, the judge again denied the abutters' special motion to dismiss the abuse of process claim. The abutters did not appeal from that ruling. They, instead, filed amended counterclaims expressly removing the purportedly conditional aspect of the counterclaims.

The developer parried by filing its own special motion to dismiss the amended counterclaims, pursuant to G. L. c. 231, § 59H. The judge denied the motion, and this appeal followed.

2. Legal standard. Under G. L. c. 231, § 59H, a party may file a special motion to dismiss if "the civil claims, counterclaims, or cross claims" against it are based solely on its exercise of the constitutional right to petition. The burden-shifting framework devised in Duracraft, 427 Mass. 156, 691 N.E.2d 935, and augmented in Blanchard I, 477 Mass. at 159-161, 75 N.E.3d 21, is used to evaluate such motions. At the threshold stage, the moving party (here, the developer) must demonstrate, through pleadings and affidavits, that each claim it challenges is based solely on its own protected petitioning activity, and that the claim has no other substantial basis. See Wenger v. Aceto, 451 Mass. 1, 5, 883 N.E.2d 262 (2008). If the moving party meets its burden, the burden shifts at the second stage to the nonmoving party (here, the abutters), to demonstrate that the anti-SLAPP statute nonetheless does not require dismissal.

A nonmoving party may satisfy its burden at the second stage in one of two ways. See Blanchard I, 477 Mass. at 159–160, 75 N.E.3d 21. The first path, which tracks the statutory language, requires the nonmoving party (here, the abutters) to establish "by a preponderance of the evidence that the [moving party,...