477 Harrison Ave, LLC v. JACE Boston, LLC

NOTICE: All slip opinions and orders are subject to formal
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SJC-12600

477 HARRISON AVE., LLC vs. JACE BOSTON, LLC, & another.1

Suffolk. January 8, 2019. - November 8, 2019.

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

"Anti-SLAPP" Statute. Constitutional Law, Right to petition
government. Practice, Civil, Motion to dismiss. Abuse of
Process. Consumer Protection Act, Unfair or deceptive act.
Contract, Performance and breach, Implied covenant of good
faith and fair dealing.

Civil action commenced in the Superior Court Department on
March 23, 2015.

Following review by this court, 477 Mass. 162 (2017), a
special motion to dismiss was heard by Joseph F. Leighton, Jr.,
J.

The Supreme Judicial Court granted an application for
direct appellate review.

Andrew E. Goloboy for the plaintiff.
Mark S. Furman (Emily C. Shanahan also present) for the
defendants.

1 Arthur Leon. Leon is the manager of JACE Boston, LLC.
Leon and JACE Boston, LLC, are referred to individually and
collectively as the "abutters."
 2

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

(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

2 An order denying a special motion to dismiss, pursuant to
G. L. c. 231, § 59H, is immediately appealable. See Blanchard
v. Steward Carney Hosp., Inc., 483 Mass. 200, 212-213 (2019)
(orders denying anti-SLAPP motion under augmented Duracraft
framework immediately appealable; see Duracraft Corp. v. Holmes
Prods. Corp., 427 Mass. 156 [1998] [Duracraft]).
 3

Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998) (Duracraft),

and augmented in Blanchard v. Steward Carney Hosp., Inc., 477

Mass. 141, 159-161 (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.

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.
 4

Steward Carney Hosp., Inc., 483 Mass. 200, 204 (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. 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. The
 5

abutters repeatedly have opposed the developer's attempts to

redevelop the property in a variety of legal and administrative

venues. Id. at 165. The parties' efforts and counterefforts

were outlined previously, see id. at 164-167, 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. 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. 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).

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
 6

zoning relief, then on appeal, to pursue instead an 'as of right

project.'" Harrison I, 477 Mass. at 165. 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. 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. The abutters responded with a special motion to dismiss

both claims, pursuant to the anti-SLAPP statute. Id. at 167.

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
 7

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. 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. See Harrison I, supra at 163-164. 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.
 8

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,

and augmented in Blanchard I, 477 Mass. at 159-161, 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

(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. 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, here

the developer] lacked any reasonable factual support or any

arguable basis in law for its petitioning activity," Baker v.

Parsons, 434 Mass. 543, 553–554 (2001), and that the moving

party's acts caused "actual injury to the responding party,"
 9

G. L. c. 231, § 59H. The second path, laid out in Blanchard I,

requires the nonmoving party (here, the abutters) to establish,

such that the motion judge can conclude with fair assurance,

that its claim is not a "meritless" SLAPP suit "brought

primarily to chill the special movant's [here, the developer's]

legitimate petitioning activities." Blanchard I, supra.

3. Sequential application. The augmented Duracraft

framework is intended to be applied sequentially. See

Blanchard I, 477 Mass. at 159. Beginning at the threshold

stage, the motion judge "consider[s] the pleadings and

supporting and opposing affidavits stating the facts upon which

the liability or defense is based," and evaluates whether the

party that has the burden of proof has satisfied it. G. L.

c. 231, § 59H. Sequential application of the framework is

especially significant for purposes of the newly augmented

second stage of the framework. By proceeding systematically, by

the time the motion judge reaches the last step, he or she will

be in a more informed position to make an assessment of the

"totality of the circumstances pertinent to the nonmoving

party's asserted primary purpose in bringing its claim," as the

augmented framework requires. Blanchard I, supra at 160.

Failing to apply the augmented framework to each challenged

claim sequentially hampers the motion judge's ability to

determine with "fair assurance" whether the challenged claims
 10

were "'brought primarily to chill' the [moving party's]

legitimate exercise of its right to petition." Blanchard I, 477

Mass. at 159-160, quoting Duracraft, 427 Mass. at 161. If the

threshold stage is skipped, for example, there may not be

focused consideration of the nature of the nonmoving party's

claims, i.e., whether the challenged claims were "based on" the

moving party's (here, the developer's) petitioning activities,

and the context in which they were raised. Those considerations

are relevant at the framework's second stage. While it may be

tempting to skip straight to the very last step of the augmented

second path of that second stage, as the motion judge did in

this case, his decision to do so illustrates the risks inherent

in that approach. We conclude that the developer's special

motion to dismiss should have been granted.

4. Application to contract counterclaims. Counts one and

two of the abutters' amended counterclaims allege breach of

contract and breach of the implied covenant of good faith and

fair dealing, respectively. They assert that, "[t]o the extent

that [the developer's] claims in the present case arise from the

2012 Zoning Appeal, the Declaratory Judgment Action, and/or the

2015 Zoning Appeal, [the developer] breached the Agreement for

[Judgment]," and the implied covenant of good faith and fair

dealing implied therein.
 11

Pursuant to the agreement for judgment, the parties agreed

to "waive, abandon, forfeit, [forgo] and release, all variances,

conditional use permissions and any and all other rights and

relief granted by or under the Decision of the Board of Appeal

of the City of Boston dated July 24, 2012," which was the

subject of the 2012 zoning appeal. For its part, the developer

reserved the right to seek "the same relief previously requested

and/or . . . any other relief," while the abutters reserved the

right to "object and challenge such permit and/or zoning

relief."

In addition, with the exception of a pending building

permit application, the agreement for judgment provided that

both parties reserved "their rights to object to and/or appeal

from any pending, issued, or future building permit applications

and/or zoning relief," and reserved "all rights, claims, relief

and defenses which have been or may in the future be asserted"

in the declaratory judgment action. The parties acknowledged

that the agreement would "have no preclusive effect as to any

request by [the developer] for a building permit and/or zoning

relief." The agreement further provided that it was not to be

construed as a judgment on the merits, that each party would

bear its own attorney's fees and costs, and that the parties

waived their rights "to appeal this Agreement for Judgment."
 12

a. Developer's threshold burden. The contract-based

counterclaims allege that, by commencing this litigation, the

developer committed a breach of the agreement for judgment in

the 2012 zoning appeal and the covenant of good faith and fair

dealing implied therein. Commencement of litigation is

quintessential petitioning activity. See Harrison I, 477 Mass.

at 169; Van Liew v. Stansfield, 474 Mass. 31, 36 (2016);

Duracraft, 427 Mass. at 168 n.20; Ehrlich v. Stern, 74 Mass.

App. Ct. 531, 538 (2009). We conclude, in addition, that the

developer met its burden of establishing that "that the only

conduct complained of is petitioning activity," Wenger, 451

Mass. at 6, and that there is no "substantial nonpetitioning

basis" for the claims, Harrison I, supra.

We recognize that, even where petitioning activity is

involved, a claim for breach of contract (or breach of the

implied covenant of good faith and fair dealing) sometimes may

present a substantial basis other than the petitioning activity

itself for purposes of the anti-SLAPP act. See Duracraft, 427

Mass. at 165-168. In this case it does not. The proposed

contract -- the agreement for judgment -- was negotiated in the

context of ongoing litigation, was filed in court, and sought

relief from the court, and judgment entered in accordance with

its terms. The agreement for judgment, and what flowed from it,

are petitioning activities. Other than those activities, there
 13

is no conduct that would provide a "substantial basis" for the

abutters' counterclaims. The developer crossed Duracraft's

threshold stage, and successfully invoked the anti-SLAPP

statute's protection.

b. Abutters' second-stage burden. At the second stage,

the burden shifts to the abutters to demonstrate in one of two

ways that the anti-SLAPP statute does not require dismissal of

their counterclaims.

i. Statutory first path. With regard to the statutory

first path, the abutters contend that both counts of the

developer's complaint -- alleging abuse of process and violation

of G. L. c. 93A -- are "devoid of any reasonable factual support

or any arguable basis in law," because the developer failed to

demonstrate damages. G. L. c. 231, § 59H. See Blanchard I, 477

Mass. at 156 n.20; Baker v. Parsons, 434 Mass. 543, 553-554

(2001). As we described in Harrison I, the developer's abuse of

process claim rests on six instances of petitioning activity:

"(1) the submission of written and oral statements to the
[Boston Redevelopment Authority] and the ZBA; (2) the
filing of the zoning appeals in the Superior Court in 2012
and 2015; (3) the filing of the declaratory judgment action
with respect to the indenture and agreement; (4) the filing
of the police report; (5) the application for a criminal
complaint against [the developer's building manager]; and
(6) the communications with [the inspectional services
department (ISD)] and various permits granted by ISD."

Harrison I, 477 Mass. at 173-174. The claim for violation of

G. L. c. 93A is predicated on the same factual averments, as
 14

well as the additional allegation that the abutters filed two

false insurance claims. Id. at 171. In its amended complaint,

the developer seeks three principal categories of damages

arising out of these events: (1) the costs associated with the

delay of the property's redevelopment; (2) the loss of proposed

penthouses; and the (3) loss of residential units on the

building's second floor.

The pleadings and affidavits adequately establish that the

claims of damage were not devoid of merit.3 The developer's

manager attested that the abutters' conduct caused delays to the

redevelopment schedule, forced the redesign of the second floor

from residential use to commercial use, and resulted in the loss

of windows and balconies. The manager also attested that the

loss of residential second-floor units caused the developer to

3 Unlike a motion to dismiss brought under Mass. R. Civ.
P. 12 (b) (6), 365 Mass. 754 (1974), a motion to dismiss
pursuant to the anti-SLAPP statute "does not test the
sufficiency" of a claim. 477 Harrison Ave., LLC v. JACE Boston,
LLC, 477 Mass. 162, 171 n.11 (2017) (Harrison I). For purposes
of the threshold determination whether the conduct concerns only
petitioning activities, we consider the claims that have been
pleaded. Id. For purposes of the second stage, we consider the
pleadings, as well as the "supporting and opposing affidavits
stating the facts upon which the liability or defense is based."
G. L. c. 231, § 59H. In Harrison I, supra at 174-175, for
example, we concluded that the developer met its second-stage
burden of demonstrating "actual injury" caused by the abutters'
application for a criminal complaint, by means of an affidavit
from the developer's manager stating that he suffered
"embarrassment," "that he had to attend a probable cause
hearing, and that he feared for the financial health of the
plaintiff if the complaint had spawned criminal charges."
 15

"suffer millions of dollars in damages." He averred that the

developer has been required to "devote time and energy to

addressing" false insurance claims, and that being required to

attend a probable cause hearing in connection with the criminal

complaint caused him embarrassment. See Harrison I, 477 Mass.

at 174-175, citing Millennium Equity Holdings, LLC v. Mahlowitz,

456 Mass. 627, 645, 650 (2010) (embarrassment and financial

concern regarding criminal complaint constitute "actual injury"

for purposes of anti-SLAPP statute).

Demonstrating that there is "no credible factual or legal

basis" for the developer's claims presents a very high bar.

Blanchard I, 477 Mass. at 156 n.20. The abutters failed to

clear it. We cannot say that either of the claims raised in the

complaint is "devoid of any reasonable factual support or any

arguable basis in law." See G. L. c. 231, § 59H.

ii. Augmented second path. The final path of the

augmented framework permits a litigant to avoid dismissal of its

claims by establishing that its claims, although "based on"

petitioning activity, nonetheless are not SLAPP suits. See

Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 204

(2019) (Blanchard II). As applied to this case, the abutters

were required to establish, such that the motion judge could

conclude with fair assurance, that each counterclaim was

(a) colorable, and (b) not brought with the "primary motivating
 16

goal" of chilling the developer's exercise of its petitioning

rights, i.e., that it was not retaliatory. See id. at 204, 209.

We consider the contract claims under that standard.

To demonstrate a colorable claim for breach of contract,

the abutters were required to establish four elements: an

agreement between the parties, supported by valid consideration;

that the abutters were ready, willing, and able to perform; that

the developer committed a breach of the contract; and that the

abutters sustained damages. See Singarella v. Boston, 342 Mass.

385, 387 (1961). A claim for breach of the implied covenant of

good faith and fair dealing requires a showing that one party

violated the reasonable expectations of the other party

concerning the obligations of the contract. See Eigerman v.

Putnam Invs., Inc., 450 Mass. 281, 287-288 (2007). The motion

judge summarily concluded that the abutters "adequately state[]

causes of action for both breach of contract and breach of the

implied covenant of good faith [and fair dealing]." We

disagree.

The parties entered into an agreement seeking entry of

judgment on particular terms, i.e., a consent judgment. See

Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29,

30 (1983). A Superior Court judge thereafter entered the

parties' agreement as a judgment of the court; no provision was

made that the agreement would survive the entry of judgment.
 17

See Kelton Corp. v. County of Worcester, 426 Mass. 355, 359

(1997) ("A consent judgment . . . conclusively determines the

rights of the parties as to all matters within its scope"). At

that point, therefore, the parties' private agreement ceased to

exist as an independent contract. See Bercume v. Bercume, 428

Mass. 635, 641 (1999) ("merger of an agreement in a judgment is

a substitution of the rights and duties under the agreement for

those established by the judgment or decree").

We recognize that "[t]here is in an agreement for

judgment, . . . an element of contract." See Bowers, 16 Mass.

App. Ct. at 34. We recognize also that that contractual element

may be taken into account if a party seeks relief from judgment.

See id. at 35. See also Thibbitts v. Crowley, 405 Mass. 222,

226-229 (1989) (court may not relieve parties of consent

judgment that delineates terms of settlement). Absent any

express provision to the contrary, however, where a judgment

incorporates the terms of an agreement, it does not follow that

an agreement for judgment is enforceable as a private contract

following the entry of that judgment. See Kelton Corp., 426

Mass. at 360 (exceptions are "extinguished unless specifically

noted in the judgment or otherwise incorporated into the

judgment"); Halpern v. Rabb, 75 Mass. App. Ct. 331, 338-339

(2009) (where provisions of separation agreement merged into

judgment, action for breach of agreement could not be
 18

maintained). Cf. Quaranto v. DiCarlo, 38 Mass. App. Ct. 411,

412-413 (1995) (where agreement for judgment did not incorporate

terms of settlement agreement, agreement could be independently

enforced), citing Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 381 (1994) (where court order dismissing action

incorporated settlement agreement, breach of agreement violates

order; otherwise, ancillary jurisdiction absent).

While there are remedies available to the abutters if there

has been noncompliance with the 2012 zoning appeal judgment, an

independent action for breach of contract is not one of them.

See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302,

313 (1991) (civil contempt action stands as "authoritative

enforcement of the consent judgment"); Sodones v. Sodones, 366

Mass. 121, 129-130 (1974) (noncompliance with court order

redressed through contempt proceedings). See also Kelton Corp.,

426 Mass. at 358-359 (clarification or modification of

judgment); Thibbitts, 405 Mass. at 227 (burden to modify consent

judgment more formidable than if judgment had been entered after

trial).

Absent evidence that the terms of the parties' agreement

survive the entry of judgment, the claims for breach of contract

and breach of the implied covenant of good faith and fair

dealing are not colorable. See Blanchard II, 483 Mass. at 207-

209. The abutters, therefore, failed to meet their burden at
 19

the second stage of the augmented Duracraft framework.

Accordingly, the denial of the special motion to dismiss the

counterclaims for breach of contract and breach of the implied

covenant of good faith and fair dealing must be vacated.

5. Application to counterclaims for abuse of process and

violation of G. L. c. 93A. Counts three and four, the amended

counterclaims alleging abuse of process and violation of G. L.

c. 93A, § 11, respectively, are principally founded on the same

factual allegations. Both counterclaims allege that the

developer "wrongfully used process by bringing the [amended

complaint] for ulterior purposes." With respect to the G. L.

c. 93A counterclaim, the abutters additionally argue that the

developer's alleged breach of the implied covenant of good faith

and fair dealing violated G. L. c. 93A.4 Considering both claims

under the augmented Duracraft framework, we conclude that the

developer met its burden at the threshold stage, and that the

abutters failed to carry their burden at the second stage,

4 The amended counterclaim alleging violation of G. L.
c. 93A generally incorporates factual allegations that precede
it, but the only basis specifically identified as violating the
statute is abuse of process.

Both in the Superior Court and on appeal, however, the
abutters additionally identify breach of the implied covenant of
good faith and fair dealing as a basis for the counterclaim.
Having concluded that the claim for breach of the implied
covenant of good faith and fair dealing is not colorable, and no
argument having been raised as to any other basis for the G. L.
c. 93A claim, we consider only abuse of process.
 20

because the counterclaims objectively burden the developer's

petitioning rights in this litigation.

a. Developer's threshold burden. The anti-SLAPP statute

does not immunize a plaintiff from counterclaims that are "filed

in response to the claim"; it does, however, provide respite

from counterclaims that are based "solely on" that petitioning

activity. Duracraft, 427 Mass. at 168 n.20. See Harrison I,

477 Mass. at 171 n.10. In this case, these counterclaims

challenge the developer's contemporaneous actions in "bringing

the present action," and "wrongfully using process by bringing

the present action for ulterior purposes." In said

circumstances, "an actionable abuse of process claim will always

be, at least in part, based on a special movant's petitioning

activities." Harrison I, supra at 168-171. Taking the

counterclaims as they have been pleaded, the developer met its

burden of establishing that they are based solely on the

developer's petitioning activity. See id. at 171 n.11.

To be sure, the abutters allege that the developer filed

its complaint for ulterior purposes, including

"(a) to force [the abutters] to refrain from opposing the
penthouse variances sought by [the developer] in 2015; (b)
to force [the abutters] to give up [their] property
interest in the [parties' shared wall]; (c) to force [the
abutters] to grant [the developer] an easement in a portion
of [the abutters' property] in the event the building on
[that property] was ever removed; (d) to force [the
abutters] to agree to put a street on the [their property]
in the area adjacent to the [developer's property] in the
 21

event the building on the [abutters' property] was removed;
(e) to retaliate against [the abutters] for exercising
their constitutional right to petition the government and
protect [the abutters'] property rights; and/or (f) to
force [the abutters] to spend thousands upon thousands of
dollars defending the case."

While those allegations may be relevant to the abutters' claim

that the developer had "ulterior purposes" for filing its

complaint, our focus at the threshold stage is limited to

determining whether the "the actual conduct complained of" is

petitioning activity. See Harrison I, 477 Mass. at 170. The

abutters do not claim that the alleged "ulterior purposes"

themselves equate to abuse of process. We conclude, therefore,

that the developer met its threshold burden of demonstrating

that the abuse of process counterclaim has no substantial basis

other than the developer's contemporaneous petitioning activity.

The same is true of the counterclaim alleging violation of

G. L. c. 93A. The only conduct -- apart from breach of the

implied covenant of good faith and fair dealing, a claim we have

found not to be colorable -- that the abutters press as a

violation of G. L. c. 93A is the developer's alleged abuse of

process. No argument having been raised that any other conduct

violates the statute, we conclude that the developer met its

threshold burden as to this claim as well.

b. Abutters' second-stage burden. Because we conclude

that the developer met its threshold burden with respect to the
 22

abuse of process and G. L. c. 93A counterclaims, at the second

stage "the burden shifts to the nonmoving party, here the

[abutters]," as provided in the anti-SLAPP statute. Harrison I,

477 Mass. at 168. For the reasons stated, the abutters did not

demonstrate, as the first path requires, that the developer's

complaint was devoid of any reasonable factual support or

arguable basis in law. See G. L. c. 231, § 59H. We therefore

turn to the augmented second path, and consider whether the

abutters established that the counterclaims were not SLAPP

suits. See Blanchard I, 477 Mass. at 160. In that regard, we

conclude that, while the counterclaims are colorable, see L.B.

v. Chief Justice of the Probate & Family Court Dep't, 474 Mass.

231, 241 (2016), they objectively burden the developer's ongoing

petitioning rights in this action. For that reason, the

abutters cannot demonstrate that the counterclaims are not SLAPP

suits. Therefore, the order denying the special motion to

dismiss the counterclaims must be vacated.

i. Colorability. A counterclaim for abuse of process has

three elements: (1) "process was used," (2) "for an ulterior or

illegitimate purpose," (3) "resulting in damage" (quotation and

citation omitted). Millennium Equity Holdings, LLC, 456 Mass.

at 636. "Proof of the groundlessness of an action is not an

essential element of an action for abuse of process." Fishman

v. Brooks, 396 Mass. 643, 652 (1986). Thus, an abuse of process
 23

counterclaim may be brought even where the plaintiff has a

meritorious claim. It is, indeed, "immaterial that the process

was properly issued, that it was obtained in the course of

proceedings which were brought with probable cause and for a

proper purpose or even that the proceedings terminated in favor

of the person instituting or initiating them." Gutierrez v.

Massachusetts Bay Transp. Auth., 437 Mass. 396, 408 (2002). See

Fishman, supra ("[a finding that] the person commencing the

litigation knew or had reason to know his [or her] claim was

groundless is relevant . . . as tending to show that the process

was used for an ulterior purpose"). Much like a SLAPP suit, at

its essence, abuse of process is a "form of coercion to obtain a

collateral advantage, not properly involved in the proceeding

itself, such as the surrender of property or the payment of

money" (citation omitted). Fabre v. Walton, 436 Mass. 517, 519

n.3 (2002), S.C., 441 Mass. 9 (2004).

As to the first element, by filing its complaint, the

developer invoked process. See Jones v. Brockton Pub. Mkts.,

Inc., 369 Mass. 387, 389 (1975). See also Harrison I, 477 Mass.

at 169. Likewise, there is no real dispute concerning the

second element. The abutters alleged, with supporting

affidavits, that the developer's "ulterior" purpose in filing

the lawsuit was to obtain collateral advantages, e.g., to compel

the abutters to refrain from opposing the developer's efforts to
 24

obtain variances, to surrender their property interests, to

grant an easement, and to agree to the placement of a street.

See Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 (2000)

(abuse of process involves effort to "obtain a collateral

advantage, not properly involved in the proceeding itself, such

as the surrender of property" [citation omitted]). We

acknowledge as well that the damages for abuse of process

include ongoing costs of defending the litigation, as the

abutters claim. See Millennium Equity Holdings, LLC, 456 Mass.

at 645 (damages for abuse of process include "the costs of

defending against the improper action"). Indeed, the abutters

allege that one of the developer's ulterior motives in filing

the complaint was to "force [the abutters] to spend thousands

upon thousands of dollars defending the case." The evidence was

sufficient to state a colorable counterclaim that the

developer's pursuit of the litigation was an abuse of process,

because it was brought for an ulterior or illegitimate purpose.

As stated, the abutters' G. L. c. 93A counterclaim is based

on the same factual allegations as their abuse of process

counterclaim. See note 4, supra. That claim alleges that the

developer's use of process for ulterior purposes violates G. L.

c. 93A. See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542,

552 n.9 (2018), citing Refuse & Envtl. Sys., Inc. v. Industrial

Servs. of Am., Inc., 932 F.2d 37, 43 (1st Cir. 1991) (litigation
 25

that constitutes abuse of process may qualify as unfair and

deceptive practice under G. L. c. 93A). Assuming, for purposes

of discussion, as the developer has alleged, that the parties

are engaged in trade or commerce, we are satisfied that there

was no error in the judge's conclusion that a colorable claim

for violation of G. L. c. 93A has been established.

ii. Retaliatory purpose. As the Duracraft framework was

augmented in Blanchard I, an anti-SLAPP motion to dismiss may be

defeated if the nonmoving party (here, the abutters)

establishes, such that the motion judge can conclude with fair

assurance, that the "primary motivating goal" in bringing the

challenged claim was "not to interfere with and burden [the]

defendant['s] . . . petition rights, but to seek damages for the

personal harm to [it] from [the] defendant['s] alleged . . .

[legally transgressive] acts.'" Blanchard I, 477 Mass. at 160,

quoting Sandholm v. Kuecker, 2012 IL 111443, ¶ 57. This is an

insurmountable burden in a case, such as this, where the

"damages for the personal harm" are inextricably entwined with

the contemporaneous conduct of the litigation itself. In that

circumstance, the counterclaim objectively burdens the opposing

party's contemporaneous petitioning rights by, among other

things, raising the specter of mounting liability for defense

costs and other damages associated with the ongoing litigation.
 26

Viewed objectively, a defendant's primary motivation in

that circumstance is to burden the plaintiff's petitioning

rights by hanging the possibility of ever-increasing liability,

like the sword of Damocles, over the plaintiff's head. That is

precisely the scenario presented here.

The parties have had a contentious relationship for years.

After the developer filed its complaint, the abutters twice

sought dismissal: they filed both an anti-SLAPP motion to

dismiss, and then a motion to dismiss pursuant to Mass. R. Civ.

P. 12 (b) (6). Although the Massachusetts Rules of Civil

Procedure provide no such mechanism, the abutters purported to

file counterclaims "conditionally," which we take to mean that

they would not press the claims, or seek associated damages, if

the developer's complaint were dismissed.

Only after their efforts to dispose of the litigation

failed, and the complaint was allowed to proceed, did the

abutters amend the counterclaims to remove their supposed

"conditional" nature. The abutters then sought damages,

including attorney's fees and costs associated with defending

the litigation, as well as for the individual defendant's

"emotional stress and suffering as a result of being

individually named as a defendant in this action."

Pragmatically, a counterclaim that is solely "based on"

petitioning activity in the same action, and that seeks damages
 27

for injury caused by that same petitioning, may not be defeated

by following the augmented second path established in

Blanchard I. In that circumstance, a party cannot establish,

such that the "motion judge may conclude with fair assurance,"

that the claim does not give rise to a SLAPP suit.5 Blanchard I,

477 Mass. at 160. The developer established that the

counterclaims were solely based on its petitioning activities,

as G. L. c. 231, § 59H, requires, and that there was no

substantial nonpetitioning basis for them. At the second stage,

because the abutters failed to demonstrate that the developer's

claims were devoid of merit, as the first path of the augmented

Duracraft framework provides, and they cannot establish that

their counterclaims do not have a retaliatory purpose, as the

5 We leave for another day the question whether a
counterclaim for abuse of process, or an associated counterclaim
alleging violation of G. L. c. 93A, is compulsory for purposes
of Mass. R. Civ. P. 13 (a), as amended, 423 Mass. 1405 (1996).
See Ladd v. Polidoro, 424 Mass. 196, 200 (1997) ("Where success
or failure depends on the credibility of contesting parties, a
litigant should not be subjected to the risk that, if the jury
reject his or her position, that same jury [or another one] will
conclude that he or she knew from the beginning that the claim
was groundless").

In Harrison I, 477 Mass. at 176, we remanded the
developer's abuse of process claim to the Superior Court "to
allow the [developer] to show that its abuse of process claim is
not a 'SLAPP' suit under the augmented Duracraft framework."
Unlike the abutters' counterclaims, the developer's abuse of
process claim does not implicate the abutters' concurrent
petitioning rights but, rather, involves petitioning activities
that have concluded.
 28

second path provides, the developer's special motion to dismiss

must be allowed.

6. Conclusion. We caution against the weaponization of

the anti-SLAPP statute. In our view, it is not properly used

either as cudgel to bludgeon an opponent's resolve to exercise

its petitioning rights, or as a shield to protect claims that,

although colorable, were brought primarily to chill another

party's legitimate petitioning activity. Applying that

principle here, we conclude that a counterclaimant asserting

damages caused by the conduct of the same proceeding, e.g.,

attorney's fees and costs, cannot establish that its

counterclaim is not a SLAPP suit for purposes of the second

stage of the Duracraft framework, as augmented in Blanchard I.

Viewed objectively, the primary motivation of such a claim is to

burden the opposing party's petitioning rights. See Blanchard

I, 477 Mass. at 160.

The order denying the developer's special motion to dismiss

is vacated, and the matter is remanded to the Superior Court for

entry of an order allowing the motion.

So ordered.