Dever v. Ward, et al. (Lawyers Weekly No. 11-114-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   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. 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 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 […]

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