477 Harrison Ave., LLC v. JACE Boston, LLC, et al. (Lawyers Weekly No. 10-083-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12150   477 HARRISON AVE., LLC  vs.  JACE BOSTON, LLC, & another.[1]       Suffolk.     January 5, 2017. – May 23, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2]     “Anti-SLAPP” Statute.  Constitutional Law, Right to petition government.  Practice, Civil, Motion to dismiss.  Abuse of Process.  Consumer Protection Act, Unfair or deceptive act.       Civil action commenced in the Superior Court Department on March 23, 2015.   A special motion to dismiss was heard by Dennis J. Curran, J.   The Supreme Judicial Court granted an application for direct appellate review.     Mark S. Furman (Emily C. Shanahan also present) for the defendants. Andrew E. Goloboy (Ronald W. Dunbar, Jr., also present) for the plaintiff.     LENK, J.  This case involves the application of G. L. c. 231, § 59H, the “anti-SLAPP” statute, to a dispute between adjoining building owners.  In 2011, the plaintiff purchased a parcel of property located at 477 Harrison Avenue in Boston with the goal of redeveloping it.  The defendants own an abutting parcel.[3]  Over the course of the next several years, the defendants opposed the plaintiff’s redevelopment plans in various legal and administrative arenas.  The plaintiff eventually filed a complaint against the defendants, raising claims of abuse of process and a violation of G. L. c. 93A, § 11.  The defendants responded by filing a special motion to dismiss pursuant to G. L. c. 231, § 59H. A Superior Court judge denied the motion, the defendants appealed, and we allowed their application for direct appellate review. We consider first whether the defendants have met their threshold burden under the anti-SLAPP statute of showing that each claim is solely based on the defendants’ petitioning activity.  See Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 167 (1998) (Duracraft).  We conclude that they have done so as to the abuse of process claim, but not as to the G. L. c. 93A claim.  The judge correctly denied the special motion to dismiss the latter claim.  The defendants having met their threshold burden as to the abuse of process claim, however, the burden then shifts to the plaintiff to show that the petitioning activity on which that claim is based lacks a reasonable basis in law or fact and has caused it actual injury, i.e., is not a valid exercise of the right to petition.  On the record before […]

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