Polay, et al. v. McMahon (Lawyers Weekly No. 10-104-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11460 JANE T. POLAY & another[1] vs. JOSEPH S. McMAHON. Middlesex. February 6, 2014. ‑ June 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Actionable Tort. Privacy. Emotional Distress. “Anti‑SLAPP” Statute. Practice, Civil, Attorney’s fees, Motion to dismiss. Words, “Incurred”. Civil action commenced in the Superior Court Department on October 26, 2011. A motion to dismiss and a special motion to dismiss were heard by Joseph M. Walker, III, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Phillip M. Eliopoulos (Angelique M. Eliopoulos with him) for the plaintiffs. Richard M. Moynihan for the defendant. Alex G. Philipson, amicus curiae, submitted a brief. DUFFLY, J. The genesis of this case is an escalating series of disputes between neighbors who live across the street from each other in Lowell. The plaintiffs, Jane T. Polay and William Morse, brought suit against the defendant, Joseph S. McMahon, alleging (1) abuse of process, (2) malicious prosecution, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) invasion of privacy. McMahon filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and a special motion to dismiss pursuant to the anti-SLAPP statute, G. L. c. 231, § 59H. A judge of the Superior Court allowed the motion to dismiss as to all claims; he also allowed the special motion to dismiss with respect to the abuse of process and malicious prosecution claims, but denied the special motion as to the other three claims. Having partially succeeded on his special motion to dismiss, McMahon moved for costs and attorney’s fees pursuant to G. L. c. 231, § 59H, and the judge granted the motion. The plaintiffs appealed, challenging only the dismissal of their invasion of privacy and intentional infliction of emotional distress claims, and the award of attorney’s fees. We reverse the dismissal of the invasion of privacy claim, remand the issue of attorney’s fees in light of our decision, and otherwise affirm. Background. The plaintiffs’ verified complaint contains the following allegations. Around April, 2008, McMahon and other neighbors entered into a common plan to harass the plaintiffs. On April 4, McMahon met with certain identified neighbors to discuss taking concerted action against the plaintiffs. After […]