In re Hamm

• Decision Date: 10 May 2021
• Docket Number: SJC-13011
• Citation: 487 Mass. 394,167 N.E.3d 1193
• Parties: In the MATTER OF William Charles HAMM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 394

167 N.E.3d 1193

In the MATTER OF William Charles HAMM.

SJC-13011

Supreme Judicial Court of Massachusetts, Middlesex..

Argued January 8, 2021.

Decided May 10, 2021.

Breton Leone-Quick, Boston, for the conservator.

Charles M. Waters, Boston, for the protected person.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

We are asked to consider, in this appeal, whether the "anti-SLAPP" statute, G. L. c. 231, § 59H, applies to an objection to a conservator's final account, filed pursuant to G. L. c. 190B, §§ 1-401 (e ) and 5-418 (e ), in the Probate and Family Court (probate court). The conservator, Candace Hamm, filed final accounts for each of the seventeen years for which she and her husband, William H. Hamm, were the conservators for their son William Charles Hamm (protected person).¹ The protected person filed an objection to the final accountings and, subsequently, an amended objection. In response to the amended objection, the conservator filed two motions to dismiss: a motion to dismiss or strike the protected person's amended objection to the accounting (motion to dismiss or strike) and a special motion to dismiss the protected person's amended objection pursuant to G. L. c. 231, § 59H (anti-SLAPP motion). A judge in the probate court denied both motions.

The conservator appealed, and we allowed the protected person's application for direct appellate review. Because we conclude that the anti-SLAPP statute does not apply in this circumstance, we affirm the judgment denying the special motion to dismiss (albeit on different grounds from the judge, who denied the motion on its merits). Additionally, although the denial of the special motion to dismiss is immediately appealable pursuant to the doctrine of present execution, there is no basis for an immediate appeal from the denial of the motion to dismiss or strike, pursuant to the doctrine of present execution or otherwise, and we therefore dismiss so much of the appeal as seeks review of the denial of that motion.

Background. Candace and William H. Hamm were appointed guardians for the protected person and conservators of his estate in 2000. In 2014, the protected person filed a petition in the probate court to terminate both the guardianship and the conservatorship. By agreement of the parties, the court terminated the guardianship. Because all of the parties were then residing in Florida, they also agreed that jurisdiction over the conservatorship, including whether to terminate it, would be transferred to the appropriate court in Florida. The protected person thereafter filed a suggestion of capacity in the Florida court. The conservators agreed to a partial restoration of capacity but sought a continued limited guardianship of the property. To that end, a judge granted in part and denied in part the protected person's motion, allowing the partial restoration of capacity and appointing a third party, Northern Trust Company, as limited guardian of the property. The judge also clearly stated that the decision did not release the conservator from any accounting proceedings related to the guardianship or conservatorship of the protected person's property.²

Meanwhile, while the proceedings in the Florida court were ongoing, the protected person filed a petition in the probate court in Massachusetts asking the court to order the conservator to render inventories and accounts for the years of conservatorship.³ The conservator eventually filed the required accounts for each year of the conservatorship, from 2000 to 2016, as well as a petition for an order of complete settlement, in March 2017, after the court ordered her to do so.⁴ The protected person objected to the conservator's inventory and accountings.

Additionally, separately, the parties were engaged in litigation in Minnesota, related to various aspects of the protected person's estate. In November 2018, the parties reached a settlement agreement as to portions of that litigation, but specifically carved out of the agreement certain classes of claims, or potential claims, related to certain identified family trusts. Subsequent to that settlement, the protected person sought and received leave to file in the probate court an amended objection to the conservator's inventory and accountings, which he then filed in March 2019.⁵

In response to the amended objection, the conservator filed her two motions to dismiss: the motion to dismiss or strike and the anti-SLAPP motion. The judge in the probate court denied both motions, in separate decisions. As to the anti-SLAPP motion, the judge noted that neither case law nor the anti-SLAPP statute itself addressed the question whether the statute applied to an objection to a conservator's account pursuant to G. L. c. 190B, §§ 1-401 (e ) and 5-418 (e ). The judge did not reach the question, however, and instead concluded that even if the statute did apply, the special motion to dismiss should be denied on the merits. The judge also denied the conservator's motion to dismiss or strike. In that motion, the conservator had argued, among other things, that the protected person's amended objection amounted to a tort claim for money damages over which the probate court had no jurisdiction and that certain of the claims in the amended objection were barred by the settlement agreement in the Minnesota litigation. The judge rejected both arguments and declined to strike the relevant portions of the amended objection.

Following the denial of the two motions to dismiss, the conservator took several steps. She filed a notice of appeal, in which she stated her intent to appeal from the denial of both motions. She then filed a petition with a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., seeking leave to file an interlocutory appeal from the denial of the motion to dismiss or strike. In her petition, she noted that she was appealing as a matter of right from the denial of the anti-SLAPP motion and that because the issues raised in that appeal overlapped with the issues in her appeal from the motion to dismiss or strike, allowing an interlocutory appeal from the latter would help avoid piecemeal appellate review. The single justice concluded that the appeal from the denial of the anti-SLAPP motion was not a "compelling reason" to overcome the policy against premature appellate review, and therefore, the single justice denied the petition.

Following additional motion practice in both the probate court and the Appeals Court, a different single justice of the Appeals Court indicated that the conservator was free to renew her argument regarding the scope of appeal in her brief (i.e., that the conservator was free to argue in her brief that the denial of the motion to dismiss or strike was immediately appealable), which the conservator has done. With all of that in mind, we turn to the issues before us regarding both the applicability of the anti-SLAPP statute and the scope of the appeal.⁶

Discussion. 1. Applicability of the ant-SLAPP statute. "The Legislature enacted the anti-SLAPP statute to counteract ‘SLAPP’ suits, defined broadly as ‘lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ "

Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 147, 75 N.E.3d 21 (2017), quoting Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161, 691 N.E.2d 935 (1998) ( Duracraft ). To that end, the statute provides that "[i]n any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss." G. L. c. 231, § 59H. The question we consider here is whether the protected person's objection to the conservator's accounting constitutes a "civil claim[ ], counterclaim[ ], or cross claim[ ]" to which the anti-SLAPP statute would apply.⁷ Id.

As we observed in Duracraft, 427 Mass. at 161, 691 N.E.2d 935, "[t]he typical mischief that the [anti-SLAPP] legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." To be sure, this is not the only type of case to which the anti-SLAPP legislation applies. See, e.g., Blanchard, 477 Mass. at 151, 75 N.E.3d 21 (hospital president's statements to newspaper were petitioning activity encompassed by anti-SLAPP statute); Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 487, 68 N.E.3d 1180 (2017) (anti-SLAPP statute protects those looking to advance causes in which they believe, such as environmental activists seeking protection of statute, not just those seeking to protect their own rights); Fabre v. Walton, 436 Mass. 517, 523, 781 N.E.2d 780 (2002), S.C., 441 Mass. 9, 802 N.E.2d 1030 (2004) (filing of complaint for abuse protection order and submitting of supporting affidavits were petitioning activities within protection of anti-SLAPP statute).

Indeed, and again as we noted in Duracraft, 427 Mass. at 162, 691 N.E.2d 935, "[t]he legislative history in Massachusetts demonstrates that in response to the problem of SLAPP suits the Legislature intended to enact very broad protection for petitioning activities." That said, we also noted that we were "dubious that the Legislature intended to create an absolute privilege," and we therefore considered how best to interpret the statute to "effect legislative intent that the statute be applied only to SLAPPs and not to suits arising in wholly different circumstances." Id. at 162-163 & n.11, 691 N.E.2d 935.

The circumstances presented here are just the type of "wholly different circumstances" to which the anti-SLAPP statute was not meant to, and does not, apply. Simply put, an objection to an accounting filed pursuant to G. L. c. 190B, §§ 1-401 (e ) and...