Giuffrida v. High Country Investor, Inc.

• Decision Date: 24 November 2008
• Docket Number: No. 07-P-751.,07-P-751.
• Citation: 897 N.E.2d 82,73 Mass. App. Ct. 225
• Parties: Irene GIUFFRIDA & others<SMALL><SUP>1</SUP></SMALL> v. HIGH COUNTRY INVESTOR, INC., & others.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

897 N.E.2d 82

73 Mass. App. Ct. 225

Irene GIUFFRIDA & others¹ v. HIGH COUNTRY INVESTOR,

INC., & others.²

No. 07-P-751.

Appeals Court of Massachusetts, Essex.

Argued March 18, 2008.

Decided November 24, 2008.

Paul S. Samson, Boston, for the plaintiffs.

John E. Coyne, Boston, for High Country Investor, Inc., & another.

Present: COHEN, TRAINOR, & MEADE, JJ.

COHEN, J.

This case arises from a dispute whether the immediate family of the late Frank Giuffrida (Frank), founder of the Hilltop Steak House restaurant and butcher shop in Saugus, Massachusetts (Hilltop), remains entitled to exercise dining and shopping privileges (the privileges) at Hilltop under agreements negotiated by Frank in the late 1980's when Hilltop was sold. The plaintiffs are Frank's widow, Irene Giuffrida (Irene), and their two daughters, Santina Primavera and Gina Noto. The defendants are High Country Investor, Inc. (High Country), which acquired Hilltop in 1994 by means of an asset purchase from the original buyer, and High Country's chief financial officer, Dennis January.

In or around September, 2004, High Country ceased to provide the privileges, claiming that the plaintiffs' legal entitlement to them had terminated. The plaintiffs filed this suit in December, 2004, alleging breach of contract and other claims. January counterclaimed against all three plaintiffs, alleging abuse of process, interference with an advantageous relationship, and defamation. The plaintiffs filed a special motion to dismiss January's counterclaims, pursuant to the anti-SLAPP statute, G.L. c. 231, § 59H, which was allowed in part by a judge of the Superior Court. However, the judge declined to award the plaintiffs any attorney's fees.

As a result of the partial allowance of the special motion to dismiss, all that remained of January's counterclaim were claims against Irene for interference with an advantageous relationship and defamation. Eventually, a different judge allowed the parties' cross motions for summary judgment, thereby disposing of all of the plaintiffs' claims, as well as January's remaining claims against Irene. In conjunction with her summary judgment motion Irene also had requested dismissal of January's remaining claims by means of a renewed special motion to dismiss under the anti-SLAPP statute, which the judge declined to allow.

The plaintiffs now appeal from the allowance of the defendants' motion for summary judgment, from the denial of Irene's renewed special motion to dismiss, and the denial of the plaintiffs' request for attorney's fees under the anti-SLAPP statute. January cross-appeals from the allowance of summary judgment on his defamation claim against Irene.

I. Summary judgment issues. We begin with the parties' appeals from the judge's summary judgment rulings, leaving for later discussion the anti-SLAPP issues raised by the plaintiffs. The applicable standards are familiar. "Summary judgment is appropriate where there is no genuine issue of material fact, and when, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." Gray v. Giroux, 49 Mass.App.Ct. 436, 438, 730 N.E.2d 338 (2000). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). "[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in [rule] 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). "On review of summary judgment, we ... consider the record and the legal principles involved without deference to the motion judge's reasoning." Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass.App.Ct. 347, 357 n. 9, 833 N.E.2d 611 (2005). Our review is de novo. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n. 1, 686 N.E.2d 1303 (1997).

A. Plaintiffs' claims.

1. Facts. Taken in the light most favorable to the plaintiffs, the evidence in the summary judgment record relating to the

plaintiffs' claims may be summarized as follows. In 1988, Frank sold the corporation that owned and operated Hilltop to a company owned by John Swansburg,³ in accordance with a purchase and sale agreement dated December 23, 1987 (Swansburg P & S). The Swansburg P & S provided that Frank and the plaintiffs, as Frank's immediate family, "during all of their lifetimes shall at any and all times be entitled" to various privileges, at no cost to them, including unlimited meals and beverages at the restaurant and unlimited goods for personal consumption at the butcher shop, as well as "[t]reatment of the highest priority, courtesy and respect," including the ability to bypass any line in obtaining service.⁴

The Swansburg sale did not include the land and building where Hilltop operated. The premises continued to be owned by The Ranch, Inc. (Ranch), a corporation formed by Frank. Pursuant to the terms of the Swansburg P & S, Ranch executed a lease of the premises to Swansburg's company (the Lease). The Lease included provisions substantially identical to those contained in the Swansburg P & S, whereby Swansburg's company, as tenant, covenanted to provide Frank and his immediate family, during their lifetimes, with dining and shopping privileges at Hilltop.⁵ The Lease also contained an option for the tenant to buy the premises after Frank's death.

In 1990, Ranch purchased a sublease of a portion of the premises on which an office building was located (the Sublease). In addition to executing the Sublease, Ranch and Swansburg also executed an amendment to the Lease, providing in part that the tenant's option to purchase the leased premises was subject to the rights and interest of Ranch under the Sublease.

In 1994, Swansburg's company sold certain assets, including Hilltop and associated trademarks, to defendant High Country, pursuant to an asset purchase agreement. In connection with this transaction, High Country entered into a trademark license agreement, whereby it expressly acknowledged that the restrictions on the use of the "Hilltop" and "Frank Giuffrida" names contained in the Swansburg P & S would remain in effect. High Country also received an assignment of the Lease, and assumed the tenant's obligations thereunder.

Frank died on December 31, 2003, at the age of 86. By letter dated January 27, 2004, High Country notified Ranch, now owned and controlled by the plaintiffs, of its intent to exercise the option to purchase contained in the Lease; however, the transaction did not go smoothly. Although High Country intended to close on March 8, 2004, with Ranch giving a deed to High Country, and High Country giving Ranch a new direct lease in substitution for the Sublease, Ranch's attorneys refused to go forward until several issues were resolved. They claimed that the new direct lease, which was supposed to contain the same terms as the Sublease, included "substantial modifications that increase Ranch's responsibilities and limit its rights and interests"; that a previously approved "ANR plan" (approval not required; see G.L. c. 41, § 81P) of the property needed to be recorded to ensure intended zoning rights for the subleased premises; and that there was a question whether High Country was in default and had lost its right to exercise the option because it had constructed an addition to Hilltop without Ranch's consent. High Country's attorney responded by accusing Ranch of raising these roadblocks in bad faith, claiming that Ranch's real concern was that it was disadvantageous to Ranch from a tax standpoint for High Country to exercise the option in 2004.

On or about March 16, 2004, January contacted John Giovannini, a nonlawyer employed by Ranch, who served as the plaintiffs' representative in their business affairs. January told Giovannini that Richard Monfort, High Country's principal, was very unhappy with the plaintiffs and that if they were unable to close the sale of the real estate to High Country by March 31, 2004, January was instructed to bring suit and make it more difficult for the plaintiffs to exercise their privileges. Giovannini requested that January go through counsel, but January refused. Fearing that January would follow through on his threat, Giovannini, after consulting with Irene, engaged in direct discussions with January.

The privileges were of considerable importance to the plaintiffs. From the time that Frank first sold Hilltop, it had meant a great deal to the family to be treated as they had been when they were the owners. It may be inferred from their long relationship with the Giuffrida family that Monfort and January well understood the plaintiffs' strong feelings about the privileges. Monfort, a Colorado businessman, had supplied beef to Frank and later to Swansburg. He had known the Giuffrida family for approximately twenty-five years and had visited their home. January, an officer of High Country, was based in Saugus and had managed Hilltop since 1995. Both men were aware that it was important to the Giuffridas not to be treated like ordinary customers and that, for example, they did not wish to go through the cash register, even if they would not be charged.

The plaintiffs considered the privileges to be part of Frank's "legacy" to them and that they were "etched in stone" for their lifetimes, as Frank had assured them. Giovannini also was under the impression that the privileges would continue for the plaintiffs' lifetimes and would be unaffected if the real estate changed hands. Monfort, on the other hand, always was of the view that once the Lease terminated, the plaintiffs would lose their privileges.

In or around March 20, 2004, the parties began to explore a buyout of the Sublease by High Country in...