MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After successfully defending a claim brought by Walter Chamberlain, Charles M. Badaoui and Byblos International, LLC (collectively, Badaoui) filed a malicious prosecution claim against Chamberlain. A Superior Court judge allowed Chamberlains special motion to dismiss brought under the strategic litigation against public participation statute, G. L. c. 231, § 59H (anti-SLAPP statute), and entered judgment for Chamberlain. On appeal, Badaoui contends that the judge failed to apply the anti-SLAPP framework articulated in Blanchard v. Steward Carney Hosp. Inc., 477 Mass. 141, 159-161 (2017) (Blanchard I), and therefore failed to give due consideration to the context in which Badaoui raised his complaint. We agree, and vacate the judgment and remand for further findings consistent with the anti-SLAPP law. In so doing, we express no view on the merits of the malicious prosecution claim and examine only the adequacy of the anti-SLAPP analysis.
Background. The parties own abutting condominiums in Boston. In 2010, Chamberlain sued Badaoui for blocking an alleged easement. Chamberlain moved for summary judgment on count one of his complaint, a claim for declaratory relief establishing his easement right. The motion was granted. What remained of the matter was the subject of a bench trial where the judge found for Chamberlain and awarded him damages
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for Badaouis refusal to honor the easement. Badaoui prevailed on appeal; this court concluded that Chamberlain did not have an easement and reversed the judgment.
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See Chamberlain v. Badaoui, 95 Mass. App. Ct. 670, 676-677 (2019). A few months later, Badaoui brought this action for malicious prosecution, seeking to recover attorneys fees and costs incurred in defending against Chamberlains complaint. Chamberlain filed a special motion to dismiss under the anti-SLAPP statute, and a Superior Court judge granted the motion. Badaoui now appeals.
Legal standard. “Under G. L. c. 231, § 59H, a party may file a special motion to dismiss if ‘the civil claims, counterclaims, or cross claims’ against it are based solely on its exercise of the constitutional right to petition.” 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 518 (2019) (477 Harrison). “The burden-shifting framework devised in [Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998)], and augmented in Blanchard I, 477 Mass. at 159-161, is used to evaluate such motions.” 477 Harrison, supra. “At the threshold stage, the moving party [here, Chamberlain] must demonstrate, through pleadings and affidavits, that each claim [he] challenges is based solely on [his] own protected petitioning activity, and that the claim has no other substantial basis.” Id., citing Wenger v. Aceto, 451 Mass. 1, 5 (2008). “If the moving party meets [his] burden, the burden shifts at the second stage to the nonmoving party [here, Badaoui], to demonstrate that the anti-SLAPP statute nonetheless does not require dismissal.” 477 Harrison, supra.
“A nonmoving party may satisfy [his] burden at the second stage in one of two ways.” 477 Harrison, 483 Mass. at 518, citing Blanchard I, 477 Mass. at 159-160. “The first path, which tracks the statutory language, requires the nonmoving party [here, Badaoui] to establish ‘by a preponderance of the evidence that the [moving party, here, Chamberlain] lacked any reasonable factual support or any arguable basis in law for its petitioning activity,’ Baker v. Parsons, 434 Mass. 543, 553-554 (2001), and that the moving partys acts caused ‘actual injury to the responding party,’ G. L. c. 231, § 59H.” 477 Harrison, supra. The “second path requires the nonmoving party [here, Badaoui] to demonstrate, ‘such that the motion judge may conclude with fair assurance,’ two elements: (a) that [his] suit was ‘colorable’; and (b) that the suit was not ‘brought primarily to chill the special movants [Chamberlains] legitimate exercise of [his] right to petition,’ i.e., that it was not retaliatory.” Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 204 (2019) (Blanchard II), quoting Blanchard I, supra at 159-161. “Failing to apply the augmented framework to each challenged claim sequentially hampers the motion judges ability to determine with ‘fair assurance’ whether the challenged claims were ‘brought primarily to chill the [moving partys] legitimate exercise of its right to petition.’ ” 477 Harrison, supra at 519, citing Blanchard I, supra at 159-160.
Discussion. The judge determined that Chamberlain met his threshold burden, and Badaoui does not challenge that ruling on appeal. We therefore begin with the second stage of the anti-SLAPP analysis. In that stage, the judge analyzed Badaouis claim under the first path and found that he failed to satisfy his burden; she then concluded her analysis without analyzing Badaouis claim under Blanchard I’s second path.
This was error. Blanchard I was decided before the ruling in this case and required the judge to evaluate Badaouis claim using both the first and second paths. The “judge, in the exercise of sound discretion, is to access the totality of the circumstances pertinent to [Badaouis] asserted primary purpose in bringing [his] claim. 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 [malicious prosecution] claim is a ‘SLAPP’ suit.” Blanchard I, 477 Mass. at 160. See Blanchard II, 483 Mass. at 205 (additional criteria for determining whether claim is SLAPP suit). For purposes of deciding a special motion, the judge may also “authorize specific discovery on the particulars of the facts that are alleged to have supported the underlying petitioning activity, in order to test the veracity of those facts.” Benoit v. Frederickson, 454 Mass. 148, 157-158 (2009) (Cordy, J., concurring). “Thereafter, the plaintiff will bear the burden of demonstrating that the defendants petitioning conduct was ‘devoid of any reasonable factual support.’ ” Id. at 158, citing G. L. c. 231, § 59H. Where, as here, the bitter backdrop of the parties’ extended engagement casts something of a shadow over the legitimacy of ongoing legal skirmishes, discovery might provide a means for getting to the heart of the second-stage, second-path analysis.
Because the judge stopped short of analyzing Badaouis claim under the second path of the second prong in Blanchard I and Blanchard II, we cannot complete our review, which is for abuse of discretion. See Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 572 n.14 (2017). On this record, we cannot assess whether the judge was “fair[ly] assur[ed]” that Badaouis malicious prosecution “claim was not primarily brought to chill [Chamberlains] legitimate petitioning activities.” Blanchard I, 477 Mass. at 160. We therefore vacate the judgment granting Chamberlains special motion to dismiss and remand to the Superior Court for further findings.
Conclusion. The judgment granting the special motion to dismiss is vacated, and the case is remanded to the Superior Court for the judge to determine (1) whether Badaouis malicious prosecution claim is “colorable” and (2) whether it “was not primarily brought to chill [Chamberlains] legitimate petitioning activities” and “not retaliatory.” Blanchard II, 483 Mass. at 204-211. See Blanchard I, 477 Mass. at 159-161.
So ordered.
vacated and remanded
FOOTNOTES
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. The trial judge also doubled the damages and awarded attorneys fees and costs, pursuant to G. L. c. 93A.
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. Badaoui appealed only from the ruling that there was an easement; he did not appeal from the dismissal of his counterclaims for abuse of process and violation of G. L. c. 93A, §§ 2, 11, and the denial of his request for attorneys fees pursuant to G. L. c. 231, § 6F. Chamberlain maintains that this failure to appeal is fatal to Badaouis malicious prosecution claim because of some unspecified type of preclusion. In light of our decision, we need not address this argument.