Dever v. Ward

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16-P-817 Appeals Court

JAMES DEVER vs. DAVID L. WARD & others.1

No. 16-P-817.

Plymouth. May 3, 2017. - September 7, 2017.

Present: Green, Massing, & Shin, JJ.

"Anti-SLAPP" Statute. Constitutional Law, Right to petition
government, Retroactivity of judicial holding. Practice,
Civil, Motion to dismiss. Abuse of Process.

Civil action commenced in the Superior Court Department on
June 9, 2015.

A special motion to dismiss was heard by Raffi N. Yessayan,
J.

Thomas A. Dougherty, III, for the plaintiff.
Curtis B. Dooling for Aaron Foley & others.
Timothy M. Pomarole for David L. Ward & others.

MASSING, J. The plaintiff, James Dever, appeals from an

order allowing the defendants' special motion to dismiss his

amended complaint under the "anti-SLAPP" statute. See G. L.

1
Daniel Rabinovitz; Michaels, Ward & Rabinovitz, LLP;
Daniel Michael Joyce; Moors & Cabot Investments, Inc.; and Aaron
Foley.
 2

c. 231, § 59H, inserted by St. 1994, c. 283, § 1. Although we

conclude that the Superior Court judge did not err or abuse his

discretion in allowing the special motion, we remand the case

for further proceedings under the "augmented" framework for

evaluating § 59H motions set out in Blanchard v. Steward Carney

Hosp., 477 Mass. 141, 159-161 (2017) (Blanchard).

Background. We recite the facts as alleged in the

plaintiff's amended complaint, supplemented by the affidavits

and exhibits submitted by the parties in connection with the

defendants' special motion to dismiss. See G. L. c. 231, § 59H

(in determining whether to grant special motion to dismiss, "the

court shall consider the pleadings and supporting and opposing

affidavits stating the facts upon which the liability or defense

is based").2

Dever was employed as a broker supervisor by defendant

Moors & Cabot Investments, Inc. (M&C), a securities and

financial planning firm. In early November, 2011, Dever was

involved in a dispute with M&C and its president, defendant

Daniel Joyce, over $2 million that Dever claimed was owed to him

in salary and commissions. Around the same time, Dever learned

2
The defendants' affidavit of counsel properly
authenticated several documents concerning the allegations in
Dever's complaint. We reject Dever's assertion that the
affidavit was somehow deficient, and in any event, Dever waived
any such claim by failing to object to the affidavit during
proceedings on the special motion. See Miller v. Miller, 448
Mass. 320, 326 (2007).
 3

that one of M&C's employees, defendant Aaron Foley, was engaging

in improper stock sales, and he reported Foley's conduct to

Joyce. Shortly thereafter, on November 9, 2011, M&C fired

Dever. In response, Dever filed a claim for arbitration against

M&C and Joyce before the Financial Industry Regulatory Authority

(FINRA), alleging breach of contract and wrongful termination.

In July, 2012, while the arbitration was pending, Joyce,

Foley, and M&C's office manager reported to the Boston police

that Dever had made between sixteen and nineteen threatening and

harassing telephone calls to them at M&C's Boston office and on

their personal cellular telephones. Joyce claimed that Dever

had threatened to harm Joyce's family, the office manager said

that Dever harassed and cursed him, and Foley reported that

Dever had made a profanity-laced death threat.

As a result of these reports, two criminal complaints

against Dever issued out of the Boston Municipal Court

Department (BMC), charging him with making annoying telephone

calls, see G. L. c. 269, § 14A, and threatening to commit a

crime, see G. L. c. 275, § 2. The BMC also issued harassment

prevention orders against Dever under G. L. c. 258E, ordering

him not to contact or abuse Joyce or the office manager and to

stay away from their residences and from M&C's Boston office.

Issued ex parte on July 12, 2012, the harassment prevention

orders were extended for one year on July 23, 2012. On August
 4

13, 2012, Joyce and the office manager moved to voluntarily

dismiss the harassment prevention orders "solely because of the

jurisdictional issue" -- neither man resided in Suffolk County3 -

- and the orders were terminated.

In addition, Foley reported Dever's threats to the Hanover

police department, applied for a criminal complaint in the

Hingham Division of the District Court Department (District

Court), and obtained an ex parte harassment prevention order.

When the Hanover police contacted Dever about making these calls

to Foley, Dever said that he remembered making the calls but did

not remember making any threats. He claimed that he had been

taking prescription medication for an injury and that his memory

was cloudy as a result. The application for a criminal

complaint was denied after a magistrate's hearing.

Dever moved to dismiss the BMC criminal complaints prior to

arraignment for lack of jurisdiction. In his motion, Dever

argued that although some of the phone calls were made to M&C's

Boston office, "Joyce testified that he received the call from

. . . Dever in the driveway of his home . . . in Marshfield." A

BMC judge allowed the motion to dismiss on October 28, 2013.

3
Although Joyce and the office manager worked in Boston, an
application for a harassment prevention order must be brought in
the jurisdiction where the applicant resides. See G. L.
c. 258E, § 2.
 5

Finally, Dever alleged that during the course of the FINRA

arbitration the defendants, through pleadings and other

communications, conveyed to the arbitrators information about

Dever's threatening and harassing conduct, including copies of

the criminal complaints and harassment prevention orders. The

defendants communicated this information "with the sole intent

of disparaging [p]laintiff and prejudicing him in the eyes of

the three member arbitrator panel." According to Dever, these

efforts were successful, causing the FINRA arbitrators to deny

Dever's claims against the defendants, which he valued at $2.5

million, and instead to award $75,000 to Foley.

Defeated in the FINRA arbitration, Dever filed the current

lawsuit in the Superior Court, naming M&C, Joyce, Foley, and

their attorneys4 as defendants. Dever's amended complaint

alleged twelve counts against some or all of the defendants:

civil conspiracy, fraud, defamation, libel, two counts of abuse

of process, two counts of malicious prosecution, and four counts

of intentional or negligent infliction of emotional distress.

All of these claims were based primarily on the defendants'

reporting of Dever's alleged criminal behavior to the Boston and

Hanover police; seeking criminal complaints and harassment

4
Dever alleged that the attorneys, defendants Ward,
Rabinovitz, and their law firm, assisted Joyce and Foley in
seeking and obtaining criminal and civil process and spread
these matters before the FINRA arbitrators.
 6

prevention orders in the BMC and the District Court; and

"referring to and repeatedly bringing up" Dever's alleged

threatening and harassing conduct, and making other disparaging

comments about him, during the course of the FINRA arbitration.5

The defendants filed a special motion to dismiss Dever's

suit under the anti-SLAPP statute. The motion judge determined

that the defendants' communications to the police, the courts,

and the FINRA arbitrators were petitioning activities, and that

they were reasonably supported in law and fact. Dever appeals,

arguing that the defendants' petitioning activity was

"illegitimate" because it was "designed to intimidate, harass,

annoy and influence pending civil matters." We affirm the

allowance of the motion, but remand for further proceedings in

light of Blanchard, 477 Mass. at 159-160.

Discussion. 1. The Duracraft framework. "The special

motion procedure employs a two-stage framework." Cardno

ChemRisk, LLC v. Foytlin, 476 Mass. 479, 484 (2017). First, the

moving party must "make a threshold showing through the

pleadings and affidavits that the claims against it are 'based

on' the petitioning activities alone and have no substantial

basis other than or in addition to the petitioning activities."

5
Dever also alleged that after the magistrate's hearing in
District Court, Foley's attorney, Rabinovitz, "took a boxing
pose and stated [to Dever's attorney] 'drop the arbitration and
my clients will drop the criminal complaints in the BMC.'"
 7

Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168

(1998) (Duracraft). If the moving party sustains this burden,

the opposing party must show that "(1) the moving party's

exercise of its right to petition was devoid of any reasonable

factual support or any arguable basis in law and (2) the moving

party's acts caused actual injury to the responding party."

G. L. c. 231, § 59H. See Duracraft, supra at 168. See also Van

Liew v. Stansfield, 474 Mass. 31, 36 (2016) (Van Liew).

We address the defendants' alleged conduct under the

Duracraft framework, "review[ing] the judge's decision to grant

the special motion to dismiss to determine whether there was an

abuse of discretion or error of law." McLarnon v. Jokisch, 431

Mass. 343, 348 (2000).

a. Petitioning activity. "'[P]etitioning' has been

consistently defined to encompass a 'very broad' range of

activities in the context of the anti-SLAPP statute." North Am.

Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 861

(2009) (North Am. Expositions). This activity includes "any

written or oral statement made before or submitted to a

legislative, executive, or judicial body, or any other

governmental proceeding; [or] any written or oral statement made

in connection with an issue under consideration or review by a

legislative, executive, or judicial body, or any other

governmental proceeding." G. L. c. 231, § 59H. "To fall under
 8

the 'in connection with' definition of petitioning under the

anti-SLAPP statute, a communication must be 'made to influence,

inform, or at the very least, reach governmental bodies --

either directly or indirectly.'" Blanchard, 477 Mass. at 149,

quoting from North Am. Expositions, supra at 862.

The defendants' appeals to the police and to the courts

were quintessential petitioning activity. See Van Liew, supra

at 36 (application for a harassment prevention order is

petitioning activity); O'Gara v. St. Germain, 91 Mass. App. Ct.

490, 497 (2017) ("When a person reports suspected criminal

activity to the police, [he] is engaging in constitutionally-

based petitioning activity for purposes of G. L. c. 231, § 59H")

(O'Gara). Dever does not meaningfully contend otherwise;

rather, he argues that the defendants' initial contact with law

enforcement and their seeking criminal complaints and harassment

prevention orders was "illegitimate" petitioning activity, "for

the ulterior purpose of affecting the ongoing civil arbitration

process." However, it is well established that in determining

whether conduct is petitioning activity for the purposes of a

§ 59H motion, "the motive behind the petitioning activity is

irrelevant." Office One, Inc. v. Lopez, 437 Mass. 113, 122

(2002). See Keystone Freight Corp. v. Bartlett Consol., Inc.,

77 Mass. App. Ct. 304, 314 (2010).
 9

Where, as here, the moving party has sought and obtained

criminal process, the nonmoving party must rely on "some other

conduct by the special movant, apart from merely obtaining the

process, that amounted to an affirmative, subsequent misuse of

the process to further the special movant's alleged ulterior

purpose." Adams v. Whitman, 62 Mass. App. Ct. 850, 855 (2005).

"The question here then is whether [Dever] alleges that the

defendants engaged in any conduct germane to [his] abuse of

process claim, apart from their invocations of process, which

can provide a 'substantial basis' for [his] claim." 477

Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 169

(2017) (477 Harrison Ave.).

Dever asserts that the defendants' introduction of the

criminal complaints and harassment prevention orders into the

FINRA arbitration amounted to affirmative conduct apart from

merely obtaining the process. "Subsequent misuse of process, as

long as it is not also petitioning activity, may . . . provide a

nonpetitioning basis for a nonmoving party's abuse of process

claim." Ibid. However, the motion judge concluded that the

defendants' communications to the arbitrators in the course of

the FINRA arbitration was petitioning activity in and of itself.

We have assumed that a party's assertions made in the

course of a Department of Telecommunications and Energy

arbitration proceeding are petitioning activity. See Global
 10

NAPS, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600,

604 n.4 (2005). The record before us is insufficient to

determine whether FINRA arbitration qualifies as a "governmental

proceeding" within the meaning of § 59H.6 However, Dever has

never argued, either in opposing the special motion in the trial

court or on appeal, that FINRA arbitration is not a governmental

proceeding. Accordingly, the issue is not before us. See Carey

v. New England Organ Bank, 446 Mass. 270, 285 (2006). For the

purpose of this appeal, we have no basis to disturb the motion

judge's determination that the defendants' conduct in the FINRA

arbitration was petitioning activity. Thus, the defendants have

met their burden of showing that Dever's complaint was based

solely on the defendants' activity.7

b. Factual or legal basis. Because Dever's complaint is

based on the defendants' petitioning activity, we turn to the

6
Compare Century 21 Chamberlain & Assocs. v. Haberman, 173
Cal. App. 4th 1, 5 (2009) (California anti-SLAPP statute does
not protect participation in private contractual arbitration),
with Mallard v. Progressive Choice Ins. Co., 188 Cal. App. 4th
531, 535 (2010) (California anti-SLAPP law applies to
statutorily mandated arbitration of uninsured motorist claim
disputes).
7
In his brief, Dever refers in passing to Rabinovitz's
attempt to use the BMC criminal complaints as leverage to coerce
Dever to drop the arbitration. See note 5, supra. However,
Dever does not cite any authority or make any reasoned legal
argument that this one act was a substantial basis for any of
his claims against the defendants. "We decline to address the
plaintiff's cursory and unsubstantiated argument, as it does not
rise to the level of acceptable appellate argument." Cameron v.
Carelli, 39 Mass. App. Ct. 81, 86 (1995).
 11

second prong of the analysis -- whether Dever can "show, by a

preponderance of the evidence, through the pleadings and

affidavits, that the moving party's petitioning activities were

'devoid of any reasonable factual support or any arguable basis

in law' and that the petitioning activities 'caused actual

injury.'" Benoit v. Frederickson, 454 Mass. 148, 152-153

(2009), quoting from Wenger v. Aceto, 451 Mass. 1, 5 (2008)

(Wenger). Other than the unsupported assertion that the

defendants' petitioning activity was based on

"misrepresentations" and motivated to gain advantage in the

arbitration, Dever has not attempted to show that the

defendants' claims against him lacked factual support. Rather,

Dever argues that the defendants' petitioning activity was

devoid of legal merit because the District Court denied Foley's

application for criminal process and the BMC dismissed the

criminal complaints against him for want of venue.

Although the magistrate in District Court declined to issue

a criminal complaint on Foley's application, "[t]hat the

complaint ultimately did not issue is not dispositive of the

issue whether the anti-SLAPP statute protects the defendant's

conduct." Wenger, supra at 7. See 477 Harrison Ave., 477 Mass.

at 173 (nonmoving party cannot meet his burden solely by

"demonstrating that the petitioning activities were

unsuccessful"). Instead, Dever must prove by a preponderance of
 12

the evidence that "'no reasonable person could conclude' that

[Foley's] report to the [Hanover] police was supported either in

fact or in law." O'Gara, 91 Mass. App. Ct. at 498. See Wenger,

supra ("The critical determination is not whether the

petitioning activity in question will be successful, but whether

it contains any reasonable factual or legal merit at all"). The

report indicates that Dever called and made a death threat to

Foley, that Foley hung up, and that Dever called back six more

times. Later that day Dever spoke to the Hanover police. He

remembered speaking to Foley, but did not remember threatening

him. Dever has failed to prove that Foley's complaint lacked an

arguable basis in law or fact.

As to the BMC complaints, Dever argues that their dismissal

on the basis of improper venue is sufficient to show that there

was no legal basis for their issuance. Assuming (without the

aid of a transcript or written findings and rationale from the

judge) that the complaints were correctly dismissed for improper

venue, such a dismissal does not render the complaints "devoid

of any reasonable factual support or any arguable basis in law."

G. L. c. 231, § 59H. The statutes at issue here, G. L. c. 275,

§ 2, and G. L. c. 269, § 14A, do not contain venue provisions.

"The venue question, therefore, is one of common law within any

limitation that art. 13 may impose." Commonwealth v. Brogan,

415 Mass. 169, 173 (1993). "One concept underlying art. 13 is
 13

that fairness to a defendant normally requires that the

defendant not be transported far away for trial but rather be

tried where there is access to witnesses and evidence for the

defense." Id. at 174.

Mindful of the this concept, we cannot say that petitioning

the BMC for the issuance of criminal complaints -- where both

the victims and the defendant worked in Boston, and at least

some of the alleged threatening phone calls were made to the

Boston office of M&C -- lacked any arguable basis in law or

fact. Accordingly, Dever has failed to meet his burden with

respect to the criminal complaints.

It follows that the defendants' representations in the

FINRA arbitrations, which concerned their petitioning activity

before the police and the courts, as well as Dever's conduct

underlying that activity, were adequately supported by the

facts. Dever's allegation that the representations were

effective in influencing the FINRA panel suggests that the panel

considered the representations to be at least arguably relevant

to the proceedings as a matter of law.8 The judge did not err or

abuse his discretion in concluding that Dever failed to carry

8
To the extent Dever claims that the arbitration panel
erred in considering the criminal complaints or harassment
prevention orders, such an error is beyond judicial review. See
School Comm. of Lowell v. Oung, 72 Mass. App. Ct. 698, 706-707
(2008).
 14

his burden of showing that the defendants' petitioning activity

lacked a legal or factual basis.

2. Augmented Duracraft framework. Previously, where the

nonmoving party could not demonstrate that the moving party's

petitioning activity was devoid of any arguable basis in law or

fact, a special motion would be allowed. However, because "it

is often difficult [for the nonmovant] to make [this] showing,"

and because "such [an] inquiry is not entirely adequate to the

task of determining whether the special motion should be

allowed," the Supreme Judicial Court in Blanchard augmented the

Duracraft framework, providing a nonmoving party with an

additional basis on which to defeat a special motion.

Blanchard, 477 Mass. at 156. Should the nonmovant fail to meet

the "high bar," id. at 156 n.20, of proving by a preponderance

of the evidence that the claim was "devoid of any reasonable

factual support or any arguable basis in law," see G. L. c. 231,

§ 59H, "the nonmoving party may . . . meet its second-stage

burden and defeat the special motion to dismiss by demonstrating

in the alternative that each challenged claim does not give rise

to a 'SLAPP' suit." Blanchard, supra at 160. To do so, the

nonmoving party must demonstrate, considering the totality of

the evidence, "that each such claim was not primarily brought to

chill the special movant's legitimate petitioning activities."

Ibid.
 15

We conclude that the Blanchard decision, which was issued

after oral argument but before decision of this appeal, applies

to this case.9 "[D]ecisional law is generally applied

retroactively, unless doing so would fail to protect the

reasonable expectations of parties." Shapiro v. Worcester, 464

Mass. 261, 268 (2013). "However, in exceptional circumstances,

when 'determining whether a new rule arising from decisional law

should apply [only] prospectively, we look at three factors:

(1) whether a new principle has been established whose

resolution was not clearly foreshadowed; (2) whether retroactive

application will further the rule; and (3) whether inequitable

results, or injustice or hardships, will be avoided by a holding

of nonretroactivity.'" Ibid., quoting from Keller v. O'Brien,

425 Mass. 774, 782 (1997).

Here, retroactive application is appropriate. First,

although "the Legislature passed the anti-SLAPP statute to

counteract 'meritless' lawsuits brought to chill a party's

petitioning activity," Blanchard, supra at 157, the Duracraft

court nearly twenty years ago foreshadowed the augmented

framework in Blanchard when it recognized that the anti-SLAPP

9
We invited the parties to submit memoranda concerning the
effect, if any, of the Blanchard decision on this case. Both
parties assumed that Blanchard applied and made arguments
addressing the merits of Dever's claim under the new framework.
After reviewing the memoranda, we concluded that the parties'
arguments should be developed and decided in the Superior Court
in the first instance.
 16

statute "did not address concerns over its breadth and reach,

and ignored its potential uses in litigation far different from

the typical SLAPP suit." Duracraft, 427 Mass. at 163. Second,

this new framework furthers the purpose of the anti-SLAPP

statute: "to distinguish between meritless claims targeting

legitimate petitioning activity and meritorious claims with no

such goal." Blanchard, supra. Third, given the foregoing,

retroactive application will not result in specific hardships or

inequities. Finally, we note that without discussion the

Supreme Judicial Court remanded both Blanchard, supra at 161,

and 477 Harrison Ave., 477 Mass. at 175-176, which were issued

the same day, for consideration under the augmented Duracraft

framework.

Although Dever was never able to clearly articulate to us

what he meant when he contended that the defendants' petitioning

activity was not "legitimate," in light of the change to the

Duracraft framework, he may endeavor to establish that his

claims concerning the defendants' communications to the police,

to the courts, and in the FINRA arbitration do not constitute a

SLAPP suit. If Dever cannot meet this burden, the defendants'

special motion should be allowed.

Conclusion. Although the judge did not err or abuse his

discretion in allowing the defendants' special motion to

dismiss, the order allowing the special motion is vacated and
 17

remanded solely for consideration under the augmented Duracraft

framework.

So ordered.