Wenger v. Aceto

• Decision Date: 27 March 2008
• Docket Number: SJC-10065.
• Citation: 883 N.E.2d 262,451 Mass. 1
• Parties: Harold WENGER v. Gregory J. ACETO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

883 N.E.2d 262

451 Mass. 1

Harold WENGER v. Gregory J. ACETO.

SJC-10065.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued February 7, 2008.

Decided March 27, 2008.

George C. Rockas, Boston (Kara Thorvaldsen with him) for the defendant.

Edward Foye, Boston, for the plaintiff.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

GREANEY, J.

The plaintiff, a physician, filed a complaint in the Superior Court seeking damages against the defendant, his former attorney, for malicious prosecution (count one); abuse of process (count two); and violations of G.L. c. 93A (count three). The defendant filed a special motion to dismiss the plaintiffs complaint pursuant to G.L. c. 231, § 59H, commonly known as the "anti-SLAPP"¹ law. The special motion was denied by a judge in the Superior Court. The defendant appealed from that denial, and we transferred the case here on our own motion. See Fabre v. Walton, 436 Mass. 517, 520-522, 781 N.E.2d 780 (2002), S.C., 441 Mass. 9, 802 N.E.2d 1030 (2004) (allowing interlocutory appeal from denial of motion to dismiss under § 59H). We conclude that the denial of the special motion to dismiss with respect to count three of the complaint was proper, but that the special motion to dismiss should have been allowed as to counts one and two. Our reasoning is as follows.

1. The record reveals a plethora of factual disputes. The parties appear to agree, however, on the facts material to this appeal, which we now set forth. The defendant represented the plaintiff on various legal matters over the course of eight years. In January, 2005, the plaintiff gave the defendant a check for $10,000 as payment for legal services performed in 2003. When the defendant attempted to deposit the check in his bank account, the check was returned to the defendant with the notation "NSF [insufficient funds]."²

On January 12, 2006, the defendant sent the plaintiff a formal written demand for payment by certified mail, which was returned because it was not claimed by the plaintiff. On February 3, the defendant had the formal written demand delivered by hand to the plaintiff. In the letter, the defendant notified the plaintiff of his intent to apply for criminal charges against him if he (the plaintiff) failed to provide payment as promised. On February 8, the plaintiff responded by informing the defendant that he intended to assert claims of malpractice against the defendant. Two days later, the defendant filed an application for a criminal complaint, pursuant to G.L. c. 218, § 35A, in the Dedham Division of the District Court Department, against the plaintiff for larceny by check, G.L. c. 266, § 37.³ The defendant's application was considered by a clerk-magistrate of the District Court, who, after an evidentiary, hearing, determined that there was no probable cause for the complaint to issue and denied the application.⁴

On July 14, 2006, the plaintiff filed a complaint in the Superior Court asserting claims against the defendant for malicious prosecution and abuse of process. The opening paragraph of the complaint states that the claims therein "aris[e] out of a criminal claim brought in the Dedham District Court." The plaintiff later amended the complaint to add a third claim for violations of G.L. c. 93A. We now consider the merits of the defendant's special motion to dismiss the amended complaint.

2. General Laws c. 231, § 59H,⁵ "protects the `exercise of [the] right of petition under the constitution of the United States or of the [Commonwealth,' by creating a procedural mechanism, in the form of a special motion to dismiss, for the expedient resolution" of suits designed to deter or retaliate against individuals who seek to exercise their right of petition. Office One, Inc. v. Lopez, 437 Mass. 113, 121, 769 N.E.2d 749 (2002). A SLAPP suit generally has no merit; the plaintiffs objective is not to win, but to "use litigation to intimidate opponents' exercise of rights of petitioning and speech," and "to deter common citizens from exercising their political or legal rights or to punish them for doing so." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161-162, 691 N.E.2d 935 (1998), quoting Wilcox v. Superior Court, 27 Cal.App.4th 809, 816-817, 33 Cal.Rptr.2d 446 (1994). The statutory definition of "a party's exercise of its right of petition" includes "any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding." G.L. c. 231, § 59H. "The typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects."

Office One, Inc. v. Lopez, supra at 121-122, 769 N.E.2d 749, quoting Duracraft Corp. v. Holmes Prods. Corp., supra. Although many States require that the petitioning activity involve a matter of public concern, as a prerequisite to invoking the protection of their own anti-SLAPP statute, the "public concern" element is not part of G.L. c. 231, § 59H. See Duracraft Corp. v. Holmes Prods. Corp., supra at 163-164 & n. 12, 691 N.E.2d 935. See also Baker v. Parsons, 434 Mass. 543, 548-549, 750 N.E.2d 953 (2001).

The burden-shifting procedure governing an anti-SLAPP motion is established. See Cadle Co. v. Schlichtmann, 448 Mass. 242, 249, 859 N.E.2d 858 (2007); Fabre v. Walton, 436 Mass. 517, 520, 781 N.E.2d 780 (2002); Baker v. Parsons, supra at 544, 551-552, 750 N.E.2d 953; McLarnon v. Jokisch, 431 Mass. 343, 348-349, 727 N.E.2d 813 (2000); Duracraft Corp. v. Holmes Prods. Corp., supra at 167-168, 691 N.E.2d 935. We briefly outline that procedure. As a threshold matter, the party seeking dismissal (the defendant) must demonstrate, through pleadings and affidavits, that the plaintiffs claims are based on "petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Id. If this showing is not made, the special motion must be denied. If the showing is made, then the burden shifts to the nonmoving party (the plaintiff) to demonstrate, again by pleadings and affidavits, that the moving party's petitioning activities were "devoid of any reasonable factual support or any arguable basis in law" and the petitioning activities "caused actual injury to the responding party." G.L. c. 231, § 59H. If these showings are made, by a preponderance of the evidence, then the special motion to dismiss must be denied. If that standard is not met for one or both elements, the special motion to dismiss must be allowed. See Cadle Co. v. Schlichtmann, supra; Fabre v. Walton, supra at 522-524, 781 N.E.2d 780; Baker v. Parsons, supra; McLarnon v. Jokisch, supra at 348-349, 727 N.E.2d 813.

3. Applying these principles to counts one and two of the plaintiffs amended complaint, it is beyond doubt that the defendant has met his initial burden of proving that the only conduct complained of is petitioning activity. See Fabre v. Walton, supra at 524, 781 N.E.2d 780. As has been stated, the plaintiff explicitly states in his amended complaint that his claims "aris[e] out of a criminal claim brought in the Dedham District Court." Although the factual allegations of the amended complaint that followed include grievances other than the filing of the criminal complaint application those grievances pertain to the defendant's misconduct in the performance of professional services to the plaintiff, the subject matter of the plaintiffs claim under G.L. c. 93A in count three, and they have no apparent relationship to the malicious prosecution and abuse of process claims. It then falls to the plaintiff to demonstrate that the defendant's petitioning activity is devoid of any reasonable factual support or any arguable basis in law. He has not met this burden.

A person is guilty of attempted larceny under G.L. c. 266, § 37, when he, "with intent to defraud, makes, draws, utters or delivers any check ... for the payment of money upon any bank ... with knowledge that the maker or drawer has not sufficient funds or credit at such bank ... for the payment of such instrument," and is guilty of larceny "if money or property or services are obtained thereby." The statute further provides that "the making, drawing, uttering or delivery of such a check ... shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds," unless payment is made for the amount due (together with costs incurred) within two days after receiving notice that the check was returned for insufficient funds. G.L. c. 266, § 37. The defendant's version of events indicates that he informed the plaintiff that the plaintiffs check had "bounced," and the plaintiff promised to deliver a new check. The replacement check, however, was never forthcoming. The plaintiff, on the other hand, denies knowing that the check was dishonored by his bank until he received notice of the defendant's intention to seek a criminal complaint. (He acknowledges knowing, however, that the check was never cashed.) The plaintiffs attorney conceded at the District Court hearing that the defendant "clearly thought," at the time the application for the criminal complaint was filed and, until informed otherwise during the hearing, that the plaintiffs check had been returned for insufficient funds. There is a sufficient basis in the record, therefore, to allow a reasonable conclusion (albeit, perhaps, misinformed) on the defendant's part that the plaintiffs conduct had satisfied the elements of G.L. c. 266, § 37, for attempted larceny, and that there was "prima facie evidence of [the plaintiffs] intent to defraud and of knowledge of insufficient funds." The defendant thus had a factual basis for filing the application for a criminal complaint against the plaintiff.

Addressing the legal basis for the application, the Superior Court judge reasoned that the knowing passing of a "bad check" does not, by itself,...