In the Matter of Hamm

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-13011

IN THE MATTER OF WILLIAM CHARLES HAMM.

Middlesex. January 8, 2021. - May 10, 2021.

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

"Anti-SLAPP" Statute. Conservator. Practice, Civil, Motion to
dismiss, Interlocutory appeal. Probate Court, Accounts,
Appeal. Jurisdiction, Probate Court.

Petition for appointment of guardian filed in the Middlesex
Division of the Probate and Family Court Department on July 21,
2000.

A motion to dismiss or strike objections to a conservator's
final account, filed on March 25, 2019, was heard by William F.
McSweeney, III, J., and a special motion to dismiss was also
heard by him.

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

Breton Leone-Quick for the conservator.
Charles M. Waters for the protected person.

CYPHER, J. We are asked to consider, in this appeal,

whether the "anti-SLAPP" statute, G. L. c. 231, § 59H, applies
 2

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

1 William H. Hamm was a co-conservator until his death in
March 2018. Candace Hamm is now acting both individually and in
her capacity as her deceased husband's representative.
 3

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
 4

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

2 The value of the protected person's estate grew in value
from approximately $8 million to approximately $44 million
during the 2000 to 2016 period of conservatorship.

3 Pursuant to G. L. c. 190B, § 5-418 (a), a "conservator
shall account to the court for administration of the trust not
less than annually . . . . On termination of the protected
person's minority or disability, a conservator shall account to
the court."

4 The conservatorship effectively ended in July 2016, when
the Florida court appointed Northern Trust Company as the
limited guardian of the protected person's estate.
 5

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

5 The protected person amended his objection in light of the
settlement in the Minnesota litigation.
 6

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
 7

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

(2017), quoting Duracraft Corp. v. Holmes Prods. Corp., 427

Mass. 156, 161 (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

6 During the pendency of the trial court litigation, the
court in Florida entered an order, in January 2019, terminating
the limited guardianship and restoring full capacity to the
protected person. For ease of reference, we follow the parties'
lead and nonetheless refer to him as the protected person.
 8

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, "[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 (hospital president's statements to newspaper were

petitioning activity encompassed by anti-SLAPP statute); Cardno

ChemRisk, LLC v. Foytlin, 476 Mass. 479, 487 (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 (2002), S.C., 441 Mass. 9

(2004) (filing of complaint for abuse protection order and

submitting of supporting affidavits were petitioning activities

within protection of anti-SLAPP statute).

7 There is no question about the propriety of the
conservator's interlocutory appeal from the denial of her anti-
SLAPP motion. See, e.g., Fabre v. Walton, 436 Mass. 517, 521-
522 (2002), S.C., 441 Mass. 9 (2004) (pursuant to doctrine of
present execution, "there is a right to interlocutory appellate
review from the denial of a special motion to dismiss filed
pursuant to the anti-SLAPP statute").
 9

Indeed, and again as we noted in Duracraft, 427 Mass. at

162, "[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.

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 5-418 (e), does not constitute a "civil claim[],

counterclaim[], or cross claim[]" for purposes of G. L. c. 231,

§ 59H. Pursuant to G. L. c. 190B, § 5-418 (a), a conservator

appointed by the court to manage the estate of a protected

person "shall account to the court for administration of the

trust not less than annually unless the court directs

otherwise." Additionally, pursuant to § 5-418 (c), the account

must contain certain information, including a listing of the

balance of the prior account or inventory; a listing of the

services provided to the protected person; and any
 10

recommendations for changes in the conservatorship plan. The

statute also provides, in § 5-418 (e), for objections to a

conservator's account. Any such objections are to be filed

pursuant to G. L. c. 190B, § 1-401 (e), which provides, in

relevant part, that an objecting party "shall file a written

affidavit of objections to the proceeding, stating the specific

facts and grounds upon which the objection is based." We do not

view this procedure as akin to a claim, counterclaim, or cross

claim as specified in G. L. c. 231, § 59H.

The conservator argues that an affidavit of objection is

simply a specialized form of pleading containing civil claims.

Relying on this court's decision in O'Rourke v. Hunter, 446

Mass. 814 (2006), she argues that such affidavits are "routinely

treated" as pleadings in the probate court. In that case, we

considered certain procedures relevant to a will contest and,

among other things, noted that "[a] motion to strike an

affidavit of objections is similar in some ways to a motion to

dismiss a complaint in a civil action under Mass. R. Civ. P. 12

(b) (6), 365 Mass. 754 (1974)." Id. at 817-818, and cases

cited.8 The implication then, is that, if a motion to strike an

8 More specifically, in O'Rourke v. Hunter, 446 Mass. 814,
816 (2006), the court was considering rule 16 of the Rules of
the Probate Court (1987). After the court's decision in that
case, the rules were amended; the relevant standards for
objections in will contests, as in cases involving conservators,
are now found in G. L. c. 190B, § 1-401.
 11

affidavit or objection "is similar in some ways" to a motion to

dismiss a complaint, then an affidavit of objection is "similar

in some ways" to a civil complaint. Even if that is so,

O'Rourke did not involve the anti-SLAPP statute, and we do not

take the implications of that case to mean that, in every

context, an affidavit of objection must be treated just like a

civil complaint.

Rather, as the protected person suggests, there is a

"fundamental difference" between an accounting of the type at

issue here and the types of lawsuits that were the basis for

anti-SLAPP legislation. This is not simply a dispute between

two parties; it involves a fiduciary relationship -- between the

conservator and the protected person -- and involves the

conservator's duty to account for the protected person's estate.

It is incumbent on the conservator to provide an accounting; she

is required to do so by statute, and the protected person has,

by statute, the right to file an affidavit of objection to the

accounting. This simply does not fall within the confines that

the Legislature had in mind in enacting the anti-SLAPP statute.9

9 In addition to arguing that the anti-SLAPP statute does
not apply in the context of this case, the protected person also
argues that the conservator is actually using the anti-SLAPP
statute as a litigation strategy -- that is, the "special motion
may have been deployed not to limit 'strategic litigation,' but
as an additional litigation tactic." Duracraft Corp. v. Holmes
Prods. Corp., 427 Mass. 156, 163 (1998). Given our conclusion
 12

Indeed, we know of no cases in any jurisdiction in which

anti-SLAPP laws have been used in the way that the conservator

seeks to use the law here. We conclude that the anti-SLAPP

statute does not apply in the circumstances of this case,

involving an accounting and objections thereto.10

2. Scope of the interlocutory appeal from the motion to

dismiss or strike. We next address the conservator's purported

appeal from the denial of her motion to dismiss or strike, as to

which she raises two issues: (1) that the judge in the probate

court erred in exercising subject matter jurisdiction over

certain of the protected person's claims in his amended

objection; and (2) that the judge erred in failing to afford

"full faith and credit" to the final judgment in the Minnesota

litigation. She posits a separate basis for the propriety of

the interlocutory appeal for each of the two issues, which we

consider in turn.

As the conservator correctly notes, the issue of subject

matter jurisdiction may be raised at any time, by a party or by

the court. See, e.g., Maxwell v. AIG Domestic Claims, Inc., 460

that the anti-SLAPP statute does not apply here, we need not
consider this point.

10We do not address whether the anti-SLAPP statute applies
to other probate court proceedings, or to other proceedings
involving conservators, guardians, or other similarly situated
individuals.
 13

Mass. 91, 99-100 (2011), and cases cited. This does not mean,

however, that a ruling on that issue is necessarily a proper

subject for interlocutory appeal. As we stated in Maxwell,

which involved the issue of subject matter jurisdiction in the

context of an interlocutory appeal from the denial of a motion

for summary judgment, "the ruling regarding subject matter

jurisdiction is . . . not properly the subject of interlocutory

appeal." Id. at 99.

In Maxwell, we went on to consider the jurisdictional

issue, but only after concluding that doing so was "the lesser

evil," in the context of that case, between the "undesirable

options of wasting judicial resources through duplicative,

piecemeal appellate litigation and permitting [the defendant] to

circumvent a bedrock principle of appellate procedure." Id. at

99.11 This case does not present the same type of circumstances,

and even if it did, this would not necessarily mean that we are

bound to consider the interlocutory appeal or, more importantly,

that the conservator has any right to an interlocutory appeal.

"As a general rule, there is no right to appeal from an

interlocutory order unless a statute or rule authorizes it."

Among other reasons for considering the subject matter
11

jurisdiction issue in the interlocutory appeal, we noted that
the issue made up the majority of the parties' briefs, the
plaintiff did not object to consideration of the issue, and the
issue also had been addressed in amicus briefs. Maxwell v. AIG
Domestic Claims, Inc., 460 Mass. 91, 98-99 (2011).
 14

Maddocks v. Ricker, 403 Mass. 592, 597-598 (1988), and cases

cited. See Brum v. Dartmouth, 428 Mass. 684, 687 (1999)

(interlocutory rulings, such as denial of motion to dismiss, are

not final orders and thus generally not appealable until

ultimate disposition of case).12

The conservator fares no better with her argument that the

issue whether the judge in the probate court failed to afford

"full faith and credit" to a final judgment in the Minnesota

litigation is the proper subject of an interlocutory appeal

pursuant to the doctrine of present execution. That doctrine

applies to cases "where the interlocutory ruling will interfere

with rights in a way that cannot be remedied on appeal from the

final judgment," and "where the matter is collateral to the

merits of the controversy" (quotations and citations omitted).

Marcus v. Newton, 462 Mass. 148, 152 (2012). Even if the

judge's ruling on the full faith and credit issue is collateral

to the merits of the parties' dispute, the ruling does not

interfere with the conservator's rights in a way that cannot be

remedied in an appeal from a final judgment.

The conservator argues that she should not be required to

defend against claims that were a part of and were disposed of

in the Minnesota litigation and, further, that this is an issue

12Any exceptions to the rule do not appear to apply to the
conservator's appeal.
 15

of full faith and credit -- that the full faith and credit

clause bars duplicative litigation. In reality, what the

conservator is arguing is that claims raised and resolved in the

Minnesota litigation are subject to the parameters of res

judicata; that is, that the protected person is precluded from

relitigating them. See Wright Mach. Corp. v. Seaman-Andwall

Corp., 364 Mass. 683, 688-689 (1974) ("[T]he principle of res

judicata requires that a valid and final personal judgment

rendered by a court of competent jurisdiction over the parties

and the subject matter serve as a bar to any further proceedings

between the same parties on the same claim. . . . The effects

of the res judicata doctrine extend to judgments rendered in

other States through the full faith and credit clause of the

Constitution . . .").

Res judicata claims, however, are not subject to the

doctrine of present execution. See Mooney v. Warren, 87 Mass.

App. Ct. 137, 138 (2015). In Mooney, the Appeals Court rejected

the defendant's argument that a motion to dismiss on res

judicata grounds was akin to a motion to dismiss on the basis of

immunity from suit. See id. at 138-139. Unlike interlocutory

orders involving claims of immunity from suit, which are

immediately appealable because the right to immunity from suit

is lost forever if the order is not appealed until the close of

litigation, a defense based on res judicata is about "freedom
 16

from liability," not "freedom from suit." Id. at 139, quoting

Marcus, 462 Mass. at 152. As with the conservator's subject

matter jurisdiction claim, her full faith and credit claim is

one that can be readily addressed, and remedied if need be, in

an appeal from a final judgment.

Conclusion. The judgment denying the anti-SLAPP special

motion to dismiss is affirmed. So much of the appeal as seeks

review of the denial of the motion to dismiss or strike is

dismissed.

So ordered.