MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Gerald G. Guidera, Jr., appeals from a Superior Court judgment insofar as it dismissed his counterclaims against the plaintiff, Amherst Community Television, Inc. (ACT), on ACTs special motion to dismiss under the anti-SLAPP statute, G. L. c. 231, § 59H (§ 59H).
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Guideras counterclaims alleged violations of the Massachusetts Civil Rights Act (MCRA) and G. L. c. 93A, tortious interference with contractual relations, civil conspiracy, abuse of process, and malicious prosecution. The counterclaims arose out of a dispute concerning a parcel of land that Guidera had conveyed to ACT, as well as the parties’ unsuccessful settlement efforts that preceded ACTs initial Land Court complaint for declaratory and injunctive relief. We conclude that the special motion to dismiss should have been denied as to Guideras counterclaims asserting MCRA and c. 93A violations, tortious interference, and civil conspiracy, and that a remand is necessary for further consideration of the special motion as to the abuse of process and malicious prosecution counterclaims.
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1. Stage one of anti-SLAPP analysis. To prevail on its special motion to dismiss, ACT was first required to “make a threshold showing through pleadings and affidavits that the claims against it are ‘based on’ [its] petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities” (quotation omitted). Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017), S.C., 483 Mass. 200 (2019). See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998). Here, the judge concluded, and the parties do not dispute, that Guideras counterclaims were generally based on one or both of two activities: (1) ACTs prelitigation settlement efforts, which included a proposal that Guidera waive his right to oppose a zoning variance if sought by ACT; and (2) ACTs initial Land Court complaint, which sought among other things an injunction barring Guidera from opposing any such variance application.
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Before deciding whether Guideras counterclaims were based solely on ACTs petitioning activities and had no other substantial basis, the judge recognized certain relevant general principles. First, “[c]ommencement of litigation is quintessential petitioning activity.” 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 520 (2019). Second, settlement discussions between parties to pending litigation are also petitioning activity. See Plante v. Wylie, 63 Mass. App. Ct. 151, 159 (2005) (petitioning activity under § 59H includes “statements made by one participant in a pending governmental proceeding to another in an effort to settle the controversy”).
Finally, the judge concluded that statements in prelitigation settlement discussions are not petitioning activity under § 59H. Such statements, at least ordinarily, are not “made before or submitted to” a governmental body, or “made in connection with an issue under consideration or review” by such a body, or “reasonably likely to encourage” such consideration or review, or “reasonably likely to enlist public participation in an effort to effect such consideration.” G. L. c. 231, § 59H. “[S]tatements cannot be ‘in furtherance of’ petitioning the government if they are not reasonably geared to reaching it.” Blanchard, 477 Mass. at 152, quoting Plante, 63 Mass. App. Ct. at 159. See Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 243 (2008) (“While there are important reasons to afford legal protection to prelitigation demand letters, ․ the anti-SLAPP statute does not, in terms, provide additional protection for such communications”).
Applying these principles, the judge correctly concluded that ACTs filing of its Land Court complaint was petitioning activity, but that ACTs prelitigation communications regarding the variance issue were not. Yet the judge went on to rule that Guidera “had no substantial basis other than or in addition to ACTs petitioning activities to bring his counterclaims.” The judge thus concluded that ACT had met its burden at stage one of the anti-SLAPP analysis.
Our review at this stage is de novo. See Haverhill Stem LLC v. Jennings, 99 Mass. App. Ct. 626, 631 (2021); Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 572 (2017). The judges conclusion was correct as to the counterclaims for abuse of process and malicious prosecution, because each of those counterclaims was based entirely on ACTs filing of its Land Court complaint,
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which was petitioning activity. The judge erred, however, as to the counterclaims asserting violations of the MCRA and c. 93A, tortious interference with contractual relations, and civil conspiracy. Those counterclaims, even if based in part on ACTs lawsuit, also had a substantial basis in ACTs prelitigation settlement communications, which the judge had already correctly concluded did not constitute petitioning activity. None of those counterclaims required proof that ACT filed any lawsuit; each of them was based on ACTs course of conduct over a period of time that began at least two months prior to filing its lawsuit.
At this first stage of the anti-SLAPP inquiry, it is necessary to determine the proper unit of analysis. A claim targeted by a special motion to dismiss may be based either (1) on discrete underlying acts, any one of which could support the claim; or (2) on a course of conduct. In the latter situation, so long as the course of conduct includes nonpetitioning activity, the acts comprising the course of conduct are not to be examined separately to determine if some acts are protected petitioning and others are not. See Reichenbach, 92 Mass. App. Ct. at 573-575. Rather, the claim is treated as “not based solely on petitioning activities and [as] assert[ing] a substantial basis beyond petitioning,” with the result that the special motion to dismiss should be denied as to that claim. Id. at 575.
Such is the case here. The MCRA, c. 93A, tortious interference, and civil conspiracy counterclaims were based on a course of conduct, which included nonpetitioning activities. Cf. Reichenbach, 92 Mass. App. Ct. at 574-575 (MCRA claims, particularly in land use context, are often based on course of conduct rather than discrete acts). ACT thus did not meet its first-stage burden as to those four counterclaims, and ACTs motion should to that extent have been denied.
2. Augmented stage two of anti-SLAPP analysis. Once ACT met its stage one burden as to the counterclaims for abuse of process and malicious prosecution, the burden shifted to Guidera. We pass over whether Guidera met his burden under the traditional stage two analysis
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and proceed directly to the augmented stage two analysis, as set forth in Blanchard. At augmented stage two, Guidera could still defeat the special motion to dismiss his abuse of process and malicious prosecution counterclaims, “by demonstrating ․ that each challenged [counter]claim does not give rise to a ‘SLAPP’ suit.” Blanchard, 477 Mass. at 160. He “may do so by demonstrating that each such [counter]claim was not primarily brought to chill the special movants legitimate petitioning activities.” Id.
“To make this showing, the nonmoving party must establish, such that the motion judge may conclude with fair assurance, that its primary motivating goal in bringing its claim, viewed in its entirety, was not to interfere with and burden defendants’ ․ petition rights, but to seek damages for the personal harm to [it] from [the] defendants’ alleged ․ [legally transgressive] acts. The nonmoving party must make this showing with respect to each such claim viewed as a whole” (quotation and citation omitted).
Id. As the court further explained, this requires the motion judge “to assess the totality of the circumstances pertinent to the nonmoving partys asserted primary purpose in bringing its claim.” Id.
“The course and manner of proceedings, the pleadings filed, and affidavits ‘stating the facts upon which the liability or defense is based,’ G. L. c. 231, § 59H, may all be considered in evaluating whether the claim is a ‘SLAPP’ suit. See Duracraft, 427 Mass. at 161–162 (listing classic indicia of ‘SLAPP’ suits). A necessary but not sufficient factor in this analysis will be whether the nonmoving partys claim at issue is ‘colorable or ․ worthy of being presented to and considered by the court,’ i.e., whether it ‘offers some reasonable possibility’ of a decision in the partys favor” (citation and footnote omitted).
Blanchard, supra at 160-161.
Here, the judge concluded that because Guideras counterclaims were not “colorable,” he had not met his burden. The judge reasoned that the counterclaims were barred both by the litigation privilege and the principle that statements made during settlement discussions are inadmissible in evidence. Each of these conclusions was premised on an error of law and thus was an abuse of discretion. See Reichenbach, 92 Mass. App. Ct. at 572 n.14 (judges determination at second stage of anti-SLAPP analysis is reviewed for abuse of discretion).
a. Litigation privilege. “The litigation privilege generally precludes civil liability based on ‘statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding,’ as well as statements ‘preliminary to litigation’ that relate to the contemplated proceeding.” Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 140 (2017), quoting Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976). The privilege does not attach, however, where statements in a complaint (or prelitigation communication) are not claimed to be “defamatory or otherwise actionable in and of themselves” but instead are merely “evidence that might support ․ claims of other misconduct,” such as filing a suit to achieve some improper purpose. Gillette, supra at 141. Without this distinction between statements and conduct, “it is hard to see how any claim for abuse of process or malicious prosecution would survive an assertion of the privilege.” Id. at 141-142. The Gillette court thus rejected an “overly expansive view of the privilege [that] would eviscerate these longstanding causes of action.” Id. at 142. See Haverhill Stem LLC, 99 Mass. App. Ct. at 636-637.
Here, Guideras abuse of process and malicious prosecution counterclaims did not seek to impose liability on ACT for any defamatory or otherwise actionable statements in ACTs complaint. Rather, it was ACTs conduct in filing the complaint, which Guidera claims is evidence of ACTs pattern of extortion, that gave rise to those two counterclaims.
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Therefore, those counterclaims were not barred by the litigation privilege as interpreted in Gillette.
b. Evidentiary privilege for settlement discussions. For similar reasons, the judge erred in concluding that those counterclaims could not succeed in the face of the evidentiary privilege applicable to statements made during settlement discussions. The privilege has been described as follows:
“Evidence of the following is not admissible -- on behalf of any party -- either to prove or disprove the validity or amount of a disputed claim:
“(1) furnishing, promising, or offering -- or accepting, promising to accept, or offering to accept -- a valuable consideration in compromising or attempting to compromise the claim or any other claim, and
“(2) conduct or a statement made during compromise negotiations about the claim.”
Mass. G. Evid. § 408(a) (2021). This principle is subject to exceptions, however. “The court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice or other state of mind, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution” (emphasis added). Id. at § 408(b). See Morea v. Cosco, Inc., 422 Mass. 601, 603–604 (1996).
Here, assuming arguendo that this privilege would exclude from evidence ACTs prelitigation settlement proposals to and discussions with Guidera, the privilege still would have no effect on Guideras two counterclaims -- for abuse of process or malicious prosecution -- that were premised on ACTs filing of the Land Court complaint itself. ACTs filing was not part of an “attempt[ ] to compromise” and did not occur “during compromise negotiations about” those two counterclaims. Mass. G. Evid. § 408(a)(1), (2). To the contrary, ACTs filing occurred after negotiations up to that point had failed.
Moreover, it is doubtful that Guidera would seek to introduce evidence of ACTs prelitigation settlement proposal -- that he agree not to oppose ACTs variance application -- in order “to prove or disprove the validity or amount of” ACTs claims. Id. at § 408(a). ACTs settlement proposal was at least ostensibly made to obviate ACT filing its own claims against Guidera -- not to settle Guideras two counterclaims. Those counterclaims, as far as the record shows, were not ripe or even contemplated before ACT itself filed suit. Determining which claims were being negotiated is critical, because statements made in settlement negotiations may be admissible where “relevant for a purpose other than liability or damages on the ․ claim [to] which the negotiations related” (emphasis added). Dahms v. Cognex Corp., 455 Mass. 190, 199 (2009). For example, such statements may be “admitted for the purpose of demonstrating [the negotiating partys] state of mind at the time.” Id.
Here, Guidera might offer ACTs settlement proposal in evidence not to show the validity or amount of ACTs claims,
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but instead to show ACTs state of mind at the time of the proposal. ACTs state of mind could be relevant to whether ACT had an improper purpose in subsequently filing suit to achieve what it could not obtain by settlement. Proof of such an improper purpose was an element of Guideras two counterclaims. See note 5, supra.
We of course do not now rule on evidentiary questions that may arise later in this litigation. We conclude only that the existence of the evidentiary privilege for settlement negotiations did not render Guideras two counterclaims noncolorable or “[un]worthy of being presented to and considered by the court”; rather, those counterclaims “offer[ed] some reasonable possibility” of a decision in Guideras favor (citation omitted). Blanchard, 477 Mass. at 161.
c. Remainder of augmented stage two analysis. Having concluded that Guideras counterclaims for abuse of process and malicious prosecution were colorable, it remains to consider the other circumstances bearing on whether either counterclaim was a SLAPP suit. See Blanchard, 477 Mass. at 160. Again, it is Guideras burden to establish, “such that the motion judge may conclude with fair assurance, that [Guideras] primary motivating goal in bringing [each counterclaim], viewed in its entirety, was not to interfere with and burden [ACTs] petition rights, but to seek damages for the personal harm to [him] from [ACTs] alleged ․ [legally transgressive] acts” (quotations omitted). Id.
The judge here considered whether Guideras two counterclaims were colorable, but his memorandum of decision did not discuss whether any other circumstances established that Guideras primary goal in asserting them was not to interfere with ACTs petition rights. The judge did state that Guidera “intended to chill ACTs legitimate petitioning activities,” but he did not explain the basis for that statement, nor did he discuss whether such chilling was Guideras “primary motivating goal.” A remand is therefore necessary. Cf. Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 209-211 (2019) (Blanchard II) (discussing factors that motion judge could consider in determining whether nonmoving partys primary motivating goal was to chill moving partys legitimate petitioning activity). The judge may, in his discretion, consider additional materials submitted by the parties regarding whether Guidera can meet his augmented stage two burden.
Although we intimate no view on whether Guidera can do so, we note that he did not assert his abuse of process and malicious prosecution counterclaims when ACT first filed this litigation. Rather, Guidera responded by seeking dismissal of ACTs claims; he asserted his counterclaims a year later, after ACTs c. 93A claim had survived his motion to dismiss and after he had incurred substantial attorneys fees. This may be relevant in assessing Guideras primary motivating goal. See Blanchard, 477 Mass. at 160. Cf. Blanchard II, 483 Mass. at 209 (examining whether nonmoving parties’ assertion of their claims was “retaliatory”).
Conclusion. The judgment is vacated to the extent that it dismissed Guideras counterclaims. In all other respects, the judgment is affirmed. The order allowing ACTs special motion to dismiss is vacated, and the matter is remanded for the entry of a new order denying that motion as to Guideras counterclaims for violations of the MCRA and c. 93A, tortious interference with contractual relations, and civil conspiracy. As to the counterclaims for abuse of process and malicious prosecution, the judge shall further consider the special motion in accordance with this memorandum and order.
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So ordered.
affirmed in part; vacated in part and remanded.
FOOTNOTES
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. Guideras earlier appeal of the order allowing ACTs special motion to dismiss was dismissed as interlocutory and premature, because ACTs G. L. c. 93A claim remained pending. See Amherst Community Television, Inc. v. Guidera, 97 Mass. App. Ct. 904 (2020). After ACT dismissed that claim, final judgment entered, and Guidera again appealed.
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. It is thus unnecessary to consider Guideras argument that § 59H was applied to him in an unconstitutional manner. We note that Guideras constitutional arguments to the motion judge were so insufficiently developed that the judge acted within his discretion in declining to consider them.
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. After ACT amended its initial complaint, a Land Court judge ruled that the court lacked jurisdiction and ordered the case transferred to Superior Court.
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. A review of the elements of those counterclaims helps make this clear. First, “[a]n abuse of process claim involves three elements: [1] ‘that process was used,’ [2] ‘for an ulterior or illegitimate purpose,’ [3] ‘resulting in damage’ (quotation and citation omitted).” 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 168-169 (2017), S.C., 483 Mass. 514 (2019), quoting Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). Although “an abuse of process claim will [not] always be solely based on a special movants petitioning activities,” 477 Harrison Ave., LLC, supra at 169, Guidera makes no argument here that his claim has any other basis. Second, “[t]o prevail on a claim of malicious prosecution, a plaintiff must prove that the defendant instituted a prior civil or criminal proceeding without probable cause and with improper purpose, and that the prior proceeding terminated in favor of the plaintiff (who was the defendant in the prior proceeding).” Billings v. Commerce Ins. Co., 458 Mass. 194, 196–197 (2010).
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. At traditional stage two, “[t]he nonmoving party may still prevail ․ by demonstrating that the special movants petitioning activities upon which the challenged claim is based lack a reasonable basis in fact or law, i.e., constitute sham petitioning, and that the petitioning activities at issue caused it injury.” Blanchard, 477 Mass. at 159. The judge concluded that Guidera had failed to show that the claims raised in ACTs Land Court complaint lacked any reasonable factual or legal basis, and on appeal Guidera does not challenge that determination.
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. The judge himself concluded, in an earlier portion of his decision, that ACTs complaint, insofar as it sought to impose a prior restraint on Guideras speech, “would not be favorably received by any court” and was “specious.”
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. Notably, at the time Guidera asserted his counterclaims, ACTs fraud claim had already been dismissed as untimely on Guideras motion. ACTs c. 93A claim was later dismissed on ACTs own motion. See note 2, supra.
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. ACTs request for its appellate costs and attorneys fees is denied.