Benoit v. Frederickson

We granted the defendants’ application for further appellate review to consider whether a Superior Court judge erred in denying the defendants’ special motion to dismiss, pursuant to G. L. c. 231, § 59H (“anti-SLAPP” statute).2 Because we conclude that the defendants are entitled to interlocutory appellate review, and that the motion judge erred in denying their special motion to dismiss, we reverse the denial and remand this case for further proceedings.

1. Background. We summarize the essential facts from the pleadings and affidavits appearing in the record. See North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 854 (2009); G. L. c. 231, § 59H. In July, 2002, the defendant, Amanda Frederickson, who was sixteen years old, reported to the police that the plaintiff, Neil Benoit, had raped her three days earlier. Frederickson reported that the rape had taken place *150at her home in Shrewsbury, where she lived with her parents, the defendants Michael and Susan Frederickson. Her report did not specify what time of day the incident occurred. The police arrested Benoit, and he was arraigned on the rape charge.3 An assistant district attorney met with Frederickson and her mother prior to a probable cause hearing that was scheduled to take place in the District Court. On the date of the probable cause hearing in September, 2002, Frederickson and her mother met the assistant district attorney at the District Court and indicated to him that Frederickson did not wish to testify. The charges against Benoit were dismissed.

Benoit filed this action in the Superior Court in June, 2005, seeking damages against Frederickson for malicious prosecution, false imprisonment, and defamation, as well as recovery against her parents pursuant to G. L. c. 231, § 85G.4 The defendants filed counterclaims, as well as a special motion to dismiss Benoit’s complaint pursuant to the anti-SLAPP statute.5 We need not detail the procedural history. In support of their special motion to dismiss, the defendants submitted affidavits of Frederickson and the assistant district attorney who had been assigned to prosecute the case against Benoit. In support of his opposition to the defendants’ motion, Benoit submitted his own affidavits, the affidavit of John Lajoie, a private investigator Benoit retained during the pendency of the criminal charges against him, as well as the affi*151davits of Michael Preeper and Timothy Hartman. Although the affidavits of Preeper and Hartman accounted for Benoit’s whereabouts during some of the relevant period of time, they did not account for Benoit’s whereabouts between 11:30 p.m. on the day before the rape was alleged to have taken place and 12:30 a.m. on the day of the alleged rape, or from 10:30 a.m. until 7:30 p.m on the day of the alleged rape.

A hearing was held on the defendants’ special motion to dismiss in June, 2006. By a written memorandum of decision and order in August, 2006, the judge denied the defendants’ special motion. The defendants appealed. After hearing argument, the Appeals Court dismissed the defendants’ appeal by an unpublished order. We granted the defendants’ application for further appellate review.6

2. Discussion, a. Interlocutory appeal. We first consider, as a threshold matter, whether the defendants may proceed with their interlocutory appeal. In Fabre v. Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004), we held that there is a right to interlocutory appellate review of the denial of a special motion to dismiss filed pursuant to the anti-SLAPP statute, and that such appeals should proceed to the Appeals Court in the first instance. Here, in dismissing the defendants’ appeal, the Appeals Court relied on its decision in Baker v. Hobson, 62 Mass. App. Ct. 659, 663 (2004), where it held that interlocutory appellate review from an order denying a special motion to dismiss is not available where counterclaims remain pending. The defendants argue that their interlocutory appeal should be allowed to proceed. We agree.

“As a general rule, an aggrieved litigant cannot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it.” Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673-674 (2008). “Consistent with this rule, the denial of a motion to dismiss is ordinarily not an appealable order.” Fabre v. Walton, supra at 521. One of the limited exceptions to the rale is the doctrine of present execution, under which an interlocutory order may be immediately appealed from if the order will interfere with rights in a way that cannot be *152remedied on appeal from a final judgment. Id. We held that the doctrine of present execution applies to the denial of a special motion to dismiss pursuant to the anti-SLAPP statute, because, as in the context of a claim of governmental immunity where “[t]he right to immunity from suit would be ‘lost forever’ if an order denying it were not appealable until the close of litigation,” id., quoting Brum v. Dartmouth, 428 Mass. 684, 688 (1999), the denial of a special motion to dismiss interferes with rights in a way that cannot be remedied on appeal from the final judgment. Fabre v. Walton, supra at 521-522.

Our holding in the Fabre case did not limit the right to interlocutory appeal from the denial of a special motion to dismiss to cases where no other claims or counterclaims remain pending. Our reasoning there applies with equal force to the circumstances here. Regardless whether claims or counterclaims remain pending, “[t]he protections afforded by the anti-SLAPP statute against the harassment and burdens of litigation are in large measure lost if the petitioner is forced to litigate a case to its conclusion before obtaining a definitive judgment through the appellate process.” Id. at 521. The defendants’ interlocutory appeal was proper.

b. Denial of special motion to dismiss. The burden-shifting procedure that governs consideration of a special motion to dismiss pursuant to the anti-SLAPP statute is well established. Wenger v. Aceto, 451 Mass. 1, 5 (2008), and cases cited. The moving party bears the initial burden to demonstrate, through the pleadings and affidavits, that the claims sought to be dismissed are based on the party’s “ ‘petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.’ ” Id., quoting Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156,167-168 (1998). “[T]he motive behind the petitioning activity is irrelevant at this initial stage.” Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002). If the moving party fails to make such a showing, the special motion must be denied. Wenger v. Aceto, supra. Where the moving party makes the requisite showing, the burden shifts to the nonmoving party to show, by a preponderance of the evidence, through the pleadings and affidavits, that the moving party’s petitioning activities were “devoid of any reasonable factual support or any arguable basis in law” *153and that the petitioning activities “caused actual injury to the [nonmoving] party.” Id., quoting G. L. c. 231, § 59H.

Here, in analyzing the defendants’ initial burden, the judge distinguished between the defendants’ “motive behind the petitioning activities,” which he concluded was irrelevant to his analysis, and the separate issue whether the defendants’ petitioning activities were, in and of themselves, “legitimate.” The judge further concluded that the defendants’ petitioning activities in this case were not “legitimate,” but rather “conditionally legitimate.” On that basis, the judge ruled that Benoit was entitled to discovery and trial on his claims against the defendants, where a trier of fact would determine whether the defendants’ petitioning activities were “legitimate” or “malicious.” This was error.

We conclude that the defendants met their initial burden by showing that Benoit’s claims were based on their petitioning activities alone and had no other substantial basis. Wenger v. Aceto, supra at 5. All of Benoit’s claims against the defendants are based on Frederickson’s report to the police. The reporting of a rape to police, which initiates the filing of a criminal complaint, is a petitioning activity encompassed within the protection afforded by G. L. c. 231, § 59H. See id. at 5-6 (filing of criminal complaint application constitutes petitioning activity); McLarnon v. Jokisch, 431 Mass. 343, 347 (2000) (anti-SLAPP statute’s definition of “a party’s exercise of its right of petition” broad enough to include filing for abuse protection order and supporting affidavit). As to the separate question whether Frederickson’s parents also were engaged in petitioning activity, we conclude that, in these circumstances, their involvement in their minor daughter’s reporting of crimes to the police plainly comes within the scope of petitioning.

Having determined that the defendants met their initial burden, the burden shifts to Benoit to show by a preponderance of the evidence, through the pleadings and affidavits, that the defendants’ petitioning activities were devoid of any reasonable factual support or any arguable basis in law and that the petitioning activities caused him actual injury. See Wenger v. Aceto, supra; G. L. c. 231, § 59H. Benoit failed to meet this burden. Frederickson reported to the police the date on which the rape took place but did not specify what time of day it occurred. The affi*154davits submitted by Benoit do not account for his whereabouts between the hours of 11:30 p.m. on the day before the rape was alleged to have taken place and 12:30 a.m. on the day of the alleged rape, as well as from 10:30 a.m. until 7:30 p.m on the day of the alleged rape. Accordingly, Benoit did not show by a preponderance of the evidence that the defendants lacked any reasonable factual support for their petitioning activity.7 The defendants were entitled to have their special motion to dismiss allowed.

c. Costs and attorney’s fees. The defendants requested an award of costs and reasonable attorney’s fees in their special motion to dismiss. Because we conclude that the defendants were entitled to have their special motion to dismiss allowed, they are entitled, as required by G. L. c. 231, § 59H, to an award of their costs and reasonable attorney’s fees related to the Superior Court proceedings on their special motion. The defendants also requested in their brief, in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), an award of their costs and reasonable attorney’s fees in connection with this appeal. The defendants are entitled to such an award, and may file a petition for reasonable appellate attorney’s fees and costs. See McLarnon v. Jokisch, supra at 350 (statutory provision for reasonable attorney’s fees includes fees related to appeal).

*1553. Conclusion. We reverse the order denying the defendants’ special motion to dismiss and remand this matter for further proceedings consistent with this decision and for the award of costs and reasonable attorney’s fees as required by G. L. c. 231, 59H.

So ordered.