Supreme Court of the United States

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1 No. ================================================================ In The Supreme Court of the United States JOHN W. BAKER and SUSAN BAKER, v. Petitioners, BONNIE HOBSON, JOHN HOBSON and VIRGINIA HUTTON, Respondents. On Petition For Writ Of Certiorari To The Massachusetts Appeals Court PETITION FOR WRIT OF CERTIORARI ROBERT H. D AURIA Counsel of Record for Petitioners LAW OFFICE OF ROBERT H. D AURIA, P.C. 41 North Road, Suite 205 Bedford, Massachusetts Telephone (781) daurialaw@aol.com ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) OR CALL COLLECT (402)

2 i QUESTIONS PRESENTED I. Whether the Bakers First Amendment Right to petition government for redress of their grievances was violated when they were held liable for abuse of process as a result of filing a meritorious suit in which they were found to have harbored an ulterior or illegitimate motive? II. Whether the Bakers First Amendment right to petition government for redress of their grievances was violated by the Court s refusal to permit the Bakers to obtain interlocutory review of an order denying their Special Motion to Dismiss the Counterclaim against them under the Massachusetts anti-slapp Statute in which the Bakers claimed they were immune from suit? III. Whether the Bakers First Amendment right to petition government for redress of their grievances was violated when the Court refused to permit them to raise immunity as a defense at trial pursuant to the Massachusetts anti-slapp statute?

3 ii TABLE OF CONTENTS Page QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iv OPINIONS BELOW... 1 JURISDICTION... 1 STATEMENT OF THE CASE... 1 REASONS FOR GRANTING THE PETITION... 7 I. The Bakers First Amendment right to petition government was violated because Bakers were held liable for abuse of process based on having filed a meritorious suit in which they were found to have harbored an ulterior or illegitimate purpose in filing the suit... 7 II. The Bakers First Amendment right to petition government for redress of their grievances was violated when the court refused to permit the Bakers to obtain interlocutory review of the order denying their Special Motion to Dismiss the Counterclaim against them under the Massachusetts anti-slapp Statute in which the Bakers claimed they were immune from suit... 9 III. The Bakers First Amendment right to petition government was violated when the court refused to permit them to raise immunity as a defense at trial pursuant to the Massachusetts anti-slapp statute CONCLUSION... 23

4 iii TABLE OF CONTENTS Continued Page APPENDIX Commonwealth of Massachusetts Appeals Court, Memorandum And Order Pursuant to Rule 1:28, dated September 28, App. 1 Plymouth Superior Court, Judgment, dated June 18, App. 9 Appeals Court of Massachusetts, Opinion, dated December 10, App. 13 Plymouth Superior Court, Memorandum of Decision and Order on Plaintiffs Special Motion to Dismiss Counterclaim Pursuant to G.L. c. 231, 59H, dated August 27, App. 22 Supreme Judicial Court for the Commonwealth of Massachusetts, Notice of Denial of F.A.R. Application, dated December 1, App. 31

5 iv TABLE OF AUTHORITIES Page CASES Adams v. Whitman, 62 Mass. App. Ct. 850 (2005)... 7, 12 Antco & Co., Corp. v. Shrewsbury Bank and Trust Company, 353 Mass. 250 (1967) Baker v. Hobson, 62 Mass. App. Ct. 659 (2004)... 1, 6, 16 Baker v. Hobson, 443 Mass (2005)... 6, 16 Baker v. Hobson, 454 Mass. 148 (2009) Baker v. Parsons, 434 Mass. 543 (2001) Benoit v. Frederickson, 454 Mass. 148 (2009)... passim Bill Johnson s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983)... 8 Boston and Maine R.R. v. Sullivan, 177 Mass. 231 (1900) California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972)... 8 California Motor Transport Co. v. Trucking Unlimited, 461 U.S. 731 (1983)... 9 Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998)... 4, 10 Eastern Railroad Presidents Conference, et al. v. Noerr Motor Freight, Inc., et al., 365 U.S. 127 (1961)... 8 Fabre v. Walton, 436 Mass. 517 (2002)... 5, 10, 15, 17, 21 Gutierrez v. Massachusetts Transp. Authority, 437 Mass. 396 (2002)... 8

6 v TABLE OF AUTHORITIES Continued Page Kobrin v. Gastfriend, 443 Mass. 327 (2005) McDonald v. Smith, 472 U.S. 479 (1985)... 7, 10 Mitchell v. Forsyth, 472 U.S. 511 (1985)... 10, 21 Office One v. Lopez, 437 Mass. 113 (2002)... 9 Ortiz v. Jordan, et al., 131 S.Ct. 884 (2011) Powers v. Leno, 24 Mass. App. Ct. 381 (1987)... 7 Wenger v. Aceto, 451 Mass. 1 (2008) CONSTITUTION First Amendment, U.S. Constitution... passim STATUTES Article 19, Massachusetts Declaration of Rights G.L. c. 231, 59H... passim G.L. c. 231, Sherman Anti-Trust Act, 15 U.S.C. 1 et seq U.S.C APPEALS COURT RULES Massachusetts Appeals Court Rule 1: , 21 LAW REVIEW ARTICLE Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3 (1989)... 4

7 1 OPINIONS BELOW The Memorandum of Decision and Order on Plaintiffs Special Motion to Dismiss Counterclaim pursuant to Massachusetts General Laws ( G.L. ) chapter H, dated August 29, 2002 is attached. The Massachusetts Appeals Court decisions are published as Baker v. Hobson, 62 Mass. App. Ct. 659 (2004); Review denied by Baker v. Hobson, 443 Mass (2005) and contained in an unpublished Massachusetts Appeals Court opinion, pursuant to Massachusetts Appeals Court Rule 1:28 dated September 28, The Massachusetts Supreme Judicial Court did not publish an opinion and denied the Bakers application for Further Appellate Review on December 1, JURISDICTION The Massachusetts Supreme Judicial Court denied the Plaintiff s Application for Further Appellate Review on December 1, This Court has jurisdiction under 28 U.S.C to review the decision of the Massachusetts Supreme Judicial Court on a writ of certiorari STATEMENT OF THE CASE This case is a dispute between landowners on Clark s Island, Plymouth, Massachusetts. The Plaintiffs/Appellants/Petitioners are John W. Baker

8 2 and Susan Baker ( Bakers ). The Defendants/ Appellees/Respondents are Virginia Hutton ( Hutton ) and Bonnie Hobson and John Hobson (hereinafter referred to collectively as Hobsons ). Clark s Island is located in Plymouth Harbor, Plymouth, Massachusetts. Pursuant to an 1881 plan recorded with the Plymouth Registry of Deeds, there is a twenty foot right of way which forms a spine on the Island. 1 The Bakers operate a tree farm on the north end of the Island. For the first eight or nine years following the Bakers purchase of the property on the Island, the parties were extremely friendly. In 1990, the parties relationship deteriorated when the Bakers began clearing brush and applied for a permit to construct a pier to service their tree farm. The Hobsons wrote letters to State and Federal agencies in opposition to the Bakers pier permit application, and also complained about the Bakers tree farming practices. On June 9, 1994, Bakers legal counsel sent a No Trespass letter to the Respondents instructing them not to enter the Bakers property on the Island. The Respondents ignored the No Trespass letter and No 1 Pursuant to a Superior Court Order, dated November 19, 1881, recorded with the Plymouth County Registry of Deeds, Book 546, Page 527, the Bakers possessed a general right of way over certain ways on Clark s Island and may pass and re-pass over the same for any purpose for which highways may lawfully be used.

9 3 Trespassing signs posted by the Bakers and continued entering the Bakers property. Initially, the Bakers deferred from filing suit to enjoin the Respondents trespasses. However, in July 2000 the Bakers became fearful for Hutton s safety when she was observed in close proximity to Bakers workers operating dangerous machinery. Hutton was elderly and had substantial physical limitations. Hutton s daughter, Bonnie Hobson, described her mother as having difficulty walking and deteriorating mentally at or about this time. Compounding the Bakers concerns at this time was Hutton s intentional interference with the Bakers right to utilize the 1881 Right of Way over which the Bakers and their employees had a right of passage. In July, 2001, Bakers legal counsel sent a second No Trespass letter to the Respondents. The Bakers also learned from their employees in July, 2001, that Hutton was blocking the passage of vehicles and heavy equipment on the 1881 Right of Way. At this time, Bakers employees were utilizing heavy equipment, tractors, and chain saws. Hutton s actions raised Bakers further concerns for her safety. The Bakers filed suit against the Respondents requesting relief: 1) to determine the parties rights to use various pathways on Clark s Island; 2) to abate a trespass; and 3) to enjoin the Respondents interference with the Bakers right to use various pathways. Bakers were not seeking monetary damages from the Respondents. However, the Bakers were concerned

10 4 about the safety issues presented by the Respondents, especially the elderly and frail Hutton, entering their property and going near their employees who were using heavy equipment. The Respondents never disputed the fact that they received the No Trespass letters from the Bakers counsel prohibiting them from entering the Bakers property, or the fact that they entered the Bakers property repeatedly after they received said letters. Nevertheless, the Respondents answered Bakers Complaint and advanced counterclaims alleging abuse of process. Hobson filed additional counterclaims alleging trespass, nuisance, illegal tree cutting and also sought declaratory relief to determine the parties rights on the Island. The Bakers responded by filing a Special Motion to Dismiss the counterclaims by the Hobsons and Hutton pursuant to Massachusetts anti-slapp Statute, G.L. c. 231, 59H. 2 The Court allowed the Special Motion to Dismiss as to the Hobsons, but denied the Motion with respect to Hutton. The Court also denied the Bakers request for attorney s fees and costs against the Hobsons following the allowance of Bakers Special Motion, despite the fact that G.L. c. 2 SLAPP is an acronym coined by Professor George Pring which stands for Strategic Lawsuits Against Public Participation. See Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, , quoting Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 5 (1989).

11 5 231, 59H mandates that attorney s fees and costs be awarded to the successful moving party. Citing Fabre v. Walton, 436 Mass. 517 (2002), the Bakers filed a petition pursuant to G.L. c. 231, 118 for Interlocutory Review of the Superior Court s denial of the Bakers Special Motion to Dismiss Hutton s counterclaim and the denial of the Bakers request for costs and attorney s fees in connection with the allowance of the Special Motion to Dismiss the counterclaim filed by Bonnie Hobson and John Hobson. The Appeals Court denied the interlocutory petition under G.L. c. 231, 118, but indicated that the denial of the Special Motion to Dismiss was immediately appealable under the Doctrine of Present Execution. 3 The Bakers filed their Notice of Appeal on October 8, 2002, and the Hobsons filed a cross appeal. In spite of the clear precedent set forth by the Supreme Judicial Court in the case of Fabre v. Walton, 436 Mass. 517 (2002) that the denial of a Special Motion to Dismiss under the anti-slapp Statute is 3 The Supreme Judicial Court s decision in Fabre v. Walton was not clear in explaining that an appeal from a denial of a Special Motion to Dismiss proceeds under the doctrine of present execution as an appeal of an interlocutory order. In fact, the reporter s notes further confuse the issue by stating that such interlocutory appeal should proceed to the Appeals Court pursuant to G.L. c. 231, 118. This procedure has since been clarified by Benoit v. Frederickson, 454 Mass. 148 (2009), but that case was not decided at the time of the Bakers appeal of the denial of their Special Motion to Dismiss and the denial of their request for attorney s fees.

12 6 subject to interlocutory review pursuant to the doctrine of present execution, the Appeals Court dismissed the Bakers appeal as premature. Baker v. Hobson, et al., 62 Mass. App. Ct. 659 (2004). The Bakers filed an Application for Further Appellate Review of the dismissal of their appeal with the Supreme Judicial Court on December 30, 2004, and their application was denied. Baker v. Hobson, 443 Mass (2005). As a result, the Bakers were deprived of their defense of immunity under the anti-slapp Statute and were forced to trial. The first portion of the case was tried before a jury in Plymouth Superior Court from January 27, 2009, to February 5, The remaining issues were tried before a Judge on June 17, At trial, the Bakers attempted to raise a defense that they were immune from suit under the anti-slapp Statute, but the Trial Court would not permit them to raise that defense. Final Judgment was entered on June 18, 2009, and the Bakers filed timely their notice of appeal to the Massachusetts Appeals Court on July 13, The Hobsons filed a cross appeal on July 17, On September 28, 2011, the Massachusetts Appeals Court affirmed the Judgment of the Plymouth Superior Court. The Bakers filed an Application for Further Appellate Review with the Massachusetts Supreme Judicial Court, and on December 1, 2011 the Bakers application was denied

13 7 REASONS FOR GRANTING THE PETITION I. The Bakers First Amendment right to petition government was violated because Bakers were held liable for abuse of process based on having filed a meritorious suit in which they were found to have harbored an ulterior or illegitimate purpose in filing the suit. The Bakers First Amendment right to petition government was violated because they filed a meritorious lawsuit but were held liable based upon a finding of an improper or illegitimate motive. The filing of a meritorious lawsuit is a constitutionally protected right under the First Amendment. McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed. 2d 384 (1985). To prove the tort of malicious abuse of process in the Commonwealth of Massachusetts, a party must establish by a preponderance of the evidence the following elements: (1) process was used; (2) an ulterior or illegitimate purpose; (3) resulting in damage. Adams v. Whitman, 62 Mass. App. Ct. 850, 853 (2005). The courts have described the tort as usually involving a form of coercion to obtain a collateral advantage which is not properly involved in the proceeding itself, similar to extortion. Id. citing, Powers v. Leno, 24 Mass. App. Ct. 381, (1987). These Massachusetts authorities collide with the First Amendment, because liability may attach regardless of whether the process in an abuse of process claim was properly issued, regardless whether the proceeding was brought with probable cause, or regardless whether the proceeding terminated in favor

14 8 of its proponent so long as a plaintiff can prove an ulterior or illegitimate purpose. Gutierrez v. Massachusetts Transp. Authority, 437 Mass. 396, 407 (2002). In order for the Bakers suit to have lost its First Amendment protection, Hutton should have been required to prove that the Bakers suit was a mere sham rather than based on some sort of improper or illegitimate motive. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed. 2d 642 (1972). By comparison, the United States Supreme Court has found that the filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would have been commenced but for the plaintiffs motive to retaliate against the defendant for exercising his rights protected by the National Labor Relations Act. Bill Johnson s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743, 103 S.Ct. 2161, 76 L.Ed. 2d 277 (1983). The United States Supreme Court has also found that although there may have been ulterior anticompetitive motives, a party s actions which were directed toward obtaining governmental action did not violate the Sherman Anti-Trust Act (15 U.S.C. 1 et seq.). Eastern Railroad Presidents Conference, et al. v. Noerr Motor Freight, Inc., et al., 365 U.S. 127, , 81 S.Ct. 523, 5 L.Ed. 2d 464 (1961). In California Motor Transport Co. v. Trucking Unlimited, the U.S. Supreme Court recognized that the right of access to the courts is an aspect of the First Amendment Right to petition government; and it

15 9 ruled that regardless of a party s anticompetitive intent or purpose in doing so, a suit could proceed unless it was a mere sham. 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed. 2d 277 (1983). The imposition of liability upon the Bakers for having allegedly harbored an ulterior or illegitimate purpose in filing a meritorious suit in the Plymouth Superior Court violated the Bakers First Amendment rights to petition government for redress of their grievances. II. The Bakers First Amendment right to petition government for redress of their grievances was violated when the court refused to permit the Bakers to obtain interlocutory review of the order denying their Special Motion to Dismiss the Counterclaim against them under the Massachusetts anti-slapp Statute in which the Bakers claimed they were immune from suit. The dismissal of the Bakers appeal of the denial of their Special Motion to Dismiss under the anti- SLAPP Statute and the subsequent refusal by the Court to permit them to raise their immunity defense provided by the anti-slapp Statute at trial violated their First Amendment right to petition government for redress of their grievances. The Massachusetts anti-slapp statute, G.L. c. 231, 59H, protects the exercise of the right of petition under the Constitution of the United States and the Commonwealth. Office One v. Lopez, 437 Mass.

16 10 113, 121 (2002). The right of petition protected by the anti-slapp Statute is the right enumerated in the First Amendment to the United States Constitution... and in Article 19 of the Massachusetts Declaration of Rights... The right of petition contemplated by the Legislature is thus one which a party seeks some redress from the government. Kobrin v. Gastfriend, 443 Mass. 327, 333 (2005). The U.S. Constitution guarantees that Congress shall make no law... abridging... the right of the people... to petition the Government for a redress of grievances (emphasis added). U.S. Const. Amend. I. The filing of a complaint in court is a form of petitioning activity protected by the First Amendment. McDonald v. Smith, 472 U.S. 479, 484, 105 S.Ct. 2737, 87 L.Ed. 2d 384 (1985). By enacting the anti-slapp statute, G.L. c. 231, 59H, the Massachusetts Legislature intended to immunize the parties from claims based on their petitioning activities. Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167 (1998). The Supreme Judicial Court of the Commonwealth of Massachusetts compares the protections afforded by the anti- SLAPP Statute to the protections afforded public officials by the doctrine of governmental immunity, insofar as an immediate appeal of an interlocutory order is allowed where the order will interfere with rights in a way that cannot be remedied on appeal from a final judgment. Fabre v. Walton, 436 Mass. 517, 520 (2002), citing Mitchell v. Forsyth, 472 U.S. 511, , 105 S.Ct. 2806, 86 L.Ed. 2d 411 (1985).

17 11 The Massachusetts Supreme Judicial Court has found that while the denial of a motion to dismiss is not typically subject to interlocutory review, the denial of a Special Motion to Dismiss under the anti- SLAPP Statute is subject to interlocutory review. Benoit v. Fredrickson, 454 Mass. 148, 151 (2009). The Court reasoned that: One of the limited exceptions to the rule 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 remedied on appeal from a final judgment. Id. at The Court acknowledged 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 the right to immunity from suit would be lost forever if an order denying it were not appealable until the close of litigation. Id. at 152. Pursuant to the Massachusetts anti-slapp Statute, a party may file a special Motion to Dismiss within sixty days of a claim against a party which is based on the party s right to petition. G.L. c. 231, 59H. The Judge is required by the Statute to grant the Special Motion to Dismiss unless the party against whom such Special Motion is made shows that: (1) the moving party s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party s act caused actual injury to the responding party. Id. Based upon the Bakers suit against the Hobsons and Hutton, which sought to clarify the parties rights

18 12 to use various pathways on Clark s Island and to abate repeated trespasses, the Hobsons and Hutton filed counterclaims against the Bakers alleging abuse of process. The Bakers were not seeking monetary damages. The Superior Court Judge allowed the Bakers Special Motion to Dismiss the counterclaims by the Hobsons, but the Judge denied the Bakers request for an award of attorney s fees and costs despite the clear mandate of the Statute to award attorney s fees and costs to a successful movant. With respect to the Bakers Special Motion to Dismiss Hutton s counterclaim, the Superior Court Judge concluded that Hutton s abuse of process counterclaim was based solely on the Bakers petitioning activities within the meaning of G.L. c. 231, 59H. As a result, the Superior Court Judge found that the burden therefore shifted to Hutton to show by a preponderance of the evidence that: (1) the Bakers exercise of their right to petition was devoid of any reasonable factual support or any arguable basis in law; and (2) the Bakers acts caused actual injury. See Benoit v. Frederickson, 454 Mass. 148, (2009); Adams v. Whitman, 62 Mass. App. Ct. 850, (2005); Wenger v. Aceto, 451 Mass. 1, 5 (2008); Baker v. Parsons, 434 Mass. 543, (2001). However, the judge erroneously denied the Bakers Special Motion to Dismiss Hutton s counterclaim and erroneously found that the Bakers complaint against Hutton was devoid of any reasonable factual support or arguable basis in law and that Hutton suffered damages. In support of their Special Motion to Dismiss Hutton s counterclaim, the Bakers offered four (4)

19 13 affidavits to support their allegations that Hutton had trespassed on the Bakers property and intentionally blocked their employees as they attempted to use the 1881 Right of Way pathway on the Island. More specifically, the affidavits of three of the Bakers employees stated that on July 6, 2001, Hutton blocked the pathway as they attempted to utilize same. John W. Baker also provided an affidavit which stated that on diverse dates, the Respondents, Hutton and Hobson, blocked his passage on the pathways, as well as the passage of his agents, servants, employees and guests. John W. Baker filed an Affidavit in which he stated: On numerous occasions since July 9, 2001, the Defendants, Bonnie Hobson, John Hobson and Virginia Hutton entered our property after having been forbidden from doing so. It was never disputed that Hutton and the Hobsons entered the Bakers property. In contrast, Hutton never offered a personal affidavit to refute the Bakers allegations that she had trespassed on their property and had blocked their employees as they attempted to use the pathway on the Island. The only affidavit Hutton offered to meet her burden was that of her co-defendant daughter, Bonnie Hobson ( Hobson ), who stated that she knew for a fact that her mother was not the person whom the three Bakers employees identified in their affidavits. However, Hobson s affidavit did not establish that Hobson was present on the pathway on July 6, 2001, nor did Hobson indicate that she

20 14 had personal knowledge of Hutton s whereabouts on that date. Under G.L. c. 231, 59H, the Court was required to determine whether the pleadings and supporting affidavits offered by the Bakers provided reasonable factual support (i.e., evidence that, if believed, would support a finding in the defendants favor)... Benoit v. Frederickson, 454 Mass. at 151 (emphasis added). The question to be determined by a judge in deciding a special motion to dismiss is not which of the parties pleadings and affidavits are entitled to be credited or accorded greater weight, but whether the nonmoving party has met its burden (by showing that the underlying petitioning activity was devoid of any reasonable factual support or arguable basis in law, and whether the activity caused actual injury to the nonmoving party). Benoit v. Frederickson, 454 Mass. at 152, n.7. Application of the standards enunciated in Benoit v. Frederickson clearly indicates the Court erred in finding that there was no competent evidence to support the Bakers contention that the woman who was reported to them as blocking the pathways was Hutton. The Court s determination was based on its finding that none of the persons whose affidavits were submitted in support of the Special Motion to Dismiss had personal knowledge that the person they claimed to have observed on the pathway was Virginia Hutton.

21 15 A review of the aforementioned four (4) affidavits submitted by the Bakers in support of their Special Motion to Dismiss renders this conclusion clearly erroneous and an abuse of discretion. First, the Judge weighed only a portion of the evidence (the three affidavits of Bakers employees) while completely ignoring the affidavit of John W. Baker which unequivocally stated that the Respondents (which includes Hutton) blocked the passage on pathways over which he and his wife and their agents, employees and guests had the right to travel, and had entered the Bakers property after being forbidden from doing so. The Judge further abused her discretion by crediting Hobson s affidavit over the affidavits submitted by Mr. Baker and the Bakers employees. Hobson was not present on July 6, 2001, when Hutton was observed by the Bakers employees and her affidavit did not even indicate Hutton s whereabouts on that date. Finally, the Judge abused her discretion by ignoring the fact that Hutton never denied she trespassed on Bakers property, or blocked the pathway utilized by the Bakers and their employees and guests. After the Superior Court denied the Bakers Special Motion to Dismiss Hutton s counterclaim alleging abuse of process pursuant to G.L. c. 231, 59H, the Bakers sought interlocutory review. A Single Justice of the Appeals Court granted interlocutory review in accordance with the principles set forth in Fabre v. Walton, 436 Mass. 517 (2002). However, the Appeals Court later dismissed the Bakers appeal as being premature and stated that it would not

22 16 decide Bakers appeal of the denial of their Special Motion to Dismiss the issue on an interlocutory basis because regardless of the outcome in the Appeals Court, some claims would remain. Baker v. Hobson, 62 Mass. App. Ct. 659, 663 (2004). 4 The Bakers filed an application for Further Appellate Review with the Massachusetts Supreme Judicial Court, and that application was denied. Baker v. Hobson, 443 Mass (2005). The Bakers were then forced to be tried upon Hutton s counterclaim for malicious abuse of process, which the Superior Court found was based on the Bakers exercise of their right to petition by having filed a trespass suit against Hutton. At trial, the Bakers were not permitted to raise immunity pursuant to the anti- SLAPP Statute as a defense. 4 The Appeals Court stated: Even were we to consider the Bakers appeal from the denial of their motion to dismiss Hutton s counterclaim for abuse of process and conclude in their favor, the counterclaim filed by the three defendants under G.L. c. 231A would remain open. Consequently, any decision by us in favor of the Bakers would not resolve the defendants suit against the Bakers with minimum cost. However, in dismissing the Bakers appeal of the denial of their request for Attorney s fees based upon the allowance of their Special Motion to Dismiss the counterclaims filed by Bonnie Hobson and John Hobson, the Appeals Court invited the Bakers to apply for attorney s fees after the entry of Final Judgment. Baker v. Hobson, 62 Mass. App. Ct. at

23 17 After the trial of the counterclaim by Hutton against the Bakers in 2009, the Massachusetts Supreme Judicial Court indicated it disagreed with the Appeals Court s ruling in Baker v. Hobson, 454 Mass. 148, 151 (2009) that interlocutory review from an order denying a Special Motion to Dismiss is not available. The Massachusetts Supreme Judicial Court expressly rejected the Appeals Court s rationale in Baker v. Hobson dismissing the Bakers appeal of the denial of their Special Motion to Dismiss as premature. Benoit v. Fredrickson, 454 Mass. 148, 151 (2009). This ruling was of little consequence to the Bakers because the damage was done they were erroneously forced to trial without having been given the opportunity to exercise their interlocutory appellate rights to assert that their petitioning activities were immune from suit. The failure of the Massachusetts Appeals Court and Supreme Judicial Court to allow the Bakers interlocutory appeal undermined the purpose of G.L. c. 231, 59H, which is to immunize parties from being forced to litigate claims based on their petitioning activities, and this violated the Bakers First Amendment rights. Fabre v. Walton, 436 Mass. 517, 520 (2002).

24 18 III. The Bakers First Amendment right to petition government was violated when the court refused to permit them to raise immunity as a defense at trial pursuant to the Massachusetts anti-slapp statute. The dismissal by the Appeals Court of the Bakers appeal of the denial of their Special Motion to Dismiss on an interlocutory basis created the novel issue in the Commonwealth of Massachusetts of whether the Superior Court was then required to view the Bakers request for dismissal under G.L. c. 231, 59H in light of evidence disclosed at trial. Having been denied their right to appeal the denial of the Special Motion to Dismiss on an interlocutory basis, the Bakers were then denied the ability to raise the immunity provided by the anti-slapp Statute at trial. At trial, the Bakers filed a Motion for Reconsideration of the denial of their Special Motion to Dismiss based upon evidence adduced at trial. They also moved for a judgment notwithstanding the jury verdict, incorporating their arguments that they were immunized from suit and for dismissal pursuant to the anti-slapp Statute after trial. The trial Judge denied both motions. The evidence elicited at trial clearly established that Hutton failed to meet her burden to show that the Bakers Complaint was devoid of any reasonable factual support or arguable basis in law, thereby mandating the dismissal of her abuse of process counterclaim. It was undisputed that Hutton entered

25 19 the Bakers property after being notified not to do so. 5 Additionally, the Jury found that the Bakers established an easement by prescription over Lot 2B, and this is one of the locations on which the Bakers allege Hutton blocked the passage of the Bakers and their employees and guests from using the pathway. Although the Bakers did not succeed in persuading the Jury by a preponderance of the evidence that the Respondents trespassed, the Bakers nevertheless had reasonable factual support and an arguable basis in law to file a complaint for same. Hence, the Bakers should not have been subjected to a malicious abuse of process claim based on their exercise of a protected First Amendment Right. The Bakers also had an arguable basis in law to file suit against Hutton seeking injunctive relief to prevent trespasses and to adjudicate their right to utilize pathways on the Island. It has long been held in the Commonwealth of Massachusetts that where a plaintiff has suffered an intentional or repeated trespass by a defendant, the plaintiff may maintain an action to enjoin the conduct of the defendant. Boston and Maine R.R. v. Sullivan, 177 Mass. 230, 233 (1900); Antco & Co. Corp. v. Shrewsbury Bank and 5 There is no dispute on this question. Counsel for Hutton states in Defendants Motion for Entry of Judgment, that it is uncontroverted that all three Respondents entered the Bakers property. The Respondents argued they were forced to go onto the Bakers property because the Bakers had blocked the 1881 Right of Way.

26 20 Trust Company, 353 Mass. 250, 254 (1967). Because the Superior Court found that Hutton s counterclaim was based upon the Bakers exercise of their right of petition, the Bakers trespass action against Hutton should have been protected by G.L. c. 231, 59H. 6 Applying the standard set forth in Benoit v. Frederickson, for determining whether a party has met its burden to show the underlying petitioning activity had reasonable factual support and an arguable basis in law, the Court was required to consider whether the evidence provided by the Bakers if believed, would support a finding in their favor. 454 Mass. at 154, n.7 (2009). The evidence at trial unequivocally disclosed that there was reasonable factual support and an arguable basis in law for the Bakers claims against Hutton for trespass and injunctive relief. Conversely, Hutton did not meet her burden to establish by a preponderance of the evidence that the Bakers Complaint against her was devoid of reasonable factual support or an arguable basis in law. Following the trial, the Bakers appealed to the Massachusetts Appeals Court. The appeal presented the Massachusetts Appeals Court with the question whether the Bakers claim that their petitioning activities were immune from suit as protected First 6 Judge Rouse denied the Bakers Special Motion to Dismiss Virginia Hutton s Counterclaim but found that the Counterclaim against the Plaintiff was based on their Right of Petition.

27 21 Amendment petitioning activity could be raised as a defense at trial. In an unpublished opinion dated September 28, 2011 pursuant to Massachusetts Appeals Court Rule 1:28, the Appeals Court rejected the Bakers argument that the dismissal of their appeal required that their Special Motion to Dismiss and claim of immunity be considered in light of evidence adduced at trial. The Appeals Court commented that they were not aware of any case which would permit them to revisit the issue at trial. In effect, the Massachusetts Appeals Court found that if a party fails to establish at the Special Motion to Dismiss stage that his/her exercise of the right to petition is immunized, the Constitutional protections vanish forever. While it is true that there is no Massachusetts case which previously addressed this issue, the United States Supreme Court has previously addressed this issue in the context of claims of qualified immunity. In ruling that there is an interlocutory right of appeal from the denial of a Special Motion to Dismiss under the anti-slapp Statute, the Massachusetts Supreme Judicial Court previously compared those interlocutory appellate rights to the interlocutory appellate rights possessed by Respondents who raise qualified immunity as a defense. Fabre v. Walton, 436 Mass. 517, 521, citing Mitchell v. Forsyth, 472 U.S. 511, , 105 S.Ct. 2806, 86 L.Ed. 2d 411 (1985). The United States Supreme Court has found that the defense of qualified immunity does not vanish when a summary judgment

28 22 motion is denied, and it remains available to the defending party at trial. Ortiz v. Jordan, et al., 131 S.Ct. 884, 889, 178 L.Ed. 2d 703 (2011). At the trial stage, the defense must be evaluated in light of the character and quality of the evidence received in court. Id. Likewise, the First Amendment protection for parties who seek redress of their grievances by filing a lawsuit should not vanish upon the denial of their Special Motion to Dismiss. The Bakers were not permitted to raise immunity as a defense at trial and were thereby deprived of their First Amendment right to petition government. The Supreme Judicial Court declined to rule on the issue raised by the Bakers on December 1, 2011 when it denied the Bakers Request for further Appellate Review. Ironically, by December 1, 2011, the Supreme Judicial Court had published its opinion in the case of Benoit v. Frederickson, 454 Mass. 148, (2009), in which it expressly rejected the Massachusetts Appeals Court decision in this case in which the Massachusetts Appeals Court dismissed as premature the Bakers appeal of the denial of their Special Motion to Dismiss. Inexplicably, the Bakers request for further appellate review was denied and the Bakers were deprived of both their interlocutory appellate rights and the ability to raise their First Amendment immunity defense at trial

29 23 CONCLUSION In summary, the Bakers First Amendment Right to petition government for redress of grievances was violated insofar as they were held liable for abuse of process for filing a meritorious suit based upon an alleged ulterior or illegitimate purpose. The refusal of the Court to permit the Bakers to raise immunity as a defense at trial and the blatant violation of the Bakers right to obtain interlocutory review of their Special Motion to Dismiss under the anti-slapp Statute violated the Bakers First Amendment Rights. The Court should grant the petition for writ of certiorari and reverse the decision of the Massachusetts Supreme Judicial Court denying further appellate review and remand the case for further proceedings. Respectfully submitted, ROBERT H. D AURIA Counsel of Record for Petitioners LAW OFFICE OF ROBERT H. D AURIA, P.C. 41 North Road, Suite 205 Bedford, Massachusetts Telephone (781) daurialaw@aol.com

30 App. 1 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT JOHN W. BAKER & another 1 vs. BONNIE HOBSON & others P-2090 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 This appeal involves a dispute over the parties property rights in various lots they own on Clarks Island in Plymouth. The plaintiffs, John and Susan Baker (Bakers), filed a complaint on October 17, 2001, seeking to abate and enjoin alleged acts of trespass by the defendants. The defendants asserted a counterclaim, alleging abuse of process by the Bakers in filing their action, and seeking a declaratory judgment concerning their property rights. The Bakers filed a special motion to dismiss under G. L. c. 231, 59H, on March 14, After a hearing, a judge of the Superior Court allowed the motion as to Bonnie and John Hobson, but denied it as to Virginia Hutton. The Bakers sought interlocutory review in the Appeals Court and the defendants cross appealed. Following the decision in Baker v. Hobson, 62 Mass. App. Ct. 659 (2004), dismissing the appeals, the defendants amended their counterclaims to add counts of trespass, nuisance, and illegal tree cutting, 1 2 Susan Baker. John Hobson and Virginia Hutton.

31 App. 2 and a trial was held in January, The jury answered special questions and remaining issues were tried to the trial judge. 3 Final judgment entered on June 18, The Bakers motions for directed verdict and for judgment notwithstanding the verdict were denied without comment. This appeal followed. 4 Discussion. 1. The special motion. Following the familiar analysis of a G. L. c. 213, 59H, motion, Office One, Inc. v. Lopez, 437 Mass. 113, (2002), the motion judge found that the only conduct complained of by the defendants in their counterclaims was the litigiousness of the Bakers, and she concluded that the Bakers complaint concerned protected petitioning activity. Accordingly, the burden shifted to the defendants to demonstrate that the Bakers right to petition was devoid of any reasonable factual support or any arguable basis in law. The judge stated that the defendants conceded they could not meet that burden with regard to John and Bonnie Hobson. However, the judge found that the allegations against Hutton were on a different footing, and that there was no competent evidence to show that Hutton was the woman who allegedly interfered with the Bakers use of their property, and therefore she should not have been joined as a defendant. The 3 The trial judge was not the motion judge. 4 The defendants filed a notice of cross appeal but have not paid a docket fee in connection therewith, and thus their appeal is not before us. See generally Mass.R.A.P. 10(a), as amended, 430 Mass (1999).

32 App. 3 motion judge also concluded that Hutton demonstrated she was caused actual injury by incurring the expense of defending against the Bakers lawsuit, Although the Bakers moved for attorney s fees under G. L. c. 231, 59H, the judge ruled that they did not prevail against all three defendants, and denied their request because it did not differentiate among the defendants. The Bakers dispute the judge s conclusion that there was no competent evidence to show that Hutton interfered with the use of their property. This conclusion was based on the judge s determination that affidavits submitted by the Bakers purporting to show that Hutton interfered with their employees use of a pathway were not based on personal knowledge and credited an affidavit of Hutton s daughter, defendant Bonnie Hobson, that Hutton was physically incapable of walking on the pathway. No abuse of the judge s discretion in assessing the credibility of the affidavits has been shown. 5 Accordingly, we conclude the judge neither abused her discretion nor committed an error of law in allowing the Bakers special motion as to Bonnie and John Hobson or in denying the motion as to Virginia Hutton. 5 We have considered the defendants argument that the motion judge erred in finding that the abuse process counterclaim was based solely on petitioning activity, but we conclude that they have failed to undermine the judge s conclusion that the only actions complained of in count I of their counterclaim is the Bakers petitioning activity.

33 App The interlocutory appeal. The Bakers sought interlocutory review in an appeal to this court and the defendants cross appealed. In a decision released on December 10, 2004, the court held that an interlocutory review could not be considered because any decision in favor of the Bakers on the counterclaim for abuse of process would not resolve the counterclaim for declaratory relief, and the court dismissed the appeals. Baker v. Hobson, 62 Mass. App. Ct. at 663. The Bakers engage in an argument to the effect that the dismissal of their appeal implicitly suggested that during the subsequent trial in the Superior Court, the dismissal of their special motion could be reviewed in the light of evidence adduced at trial. We reject this argument because no reasonable view of Baker v. Hobson, supra, nor any other case of which we are aware, permits revisiting a ruling on a special motion during a subsequent trial. To permit such later review would be contrary to the purpose of G. L. c. 231, 59H, which is to resolve litigation speedily and at minimum cost. Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998). The Bakers motion for reconsideration of the denial of the special motion based on evidence adduced at trial, and their motion for judgment notwithstanding the verdict, properly were denied. 3. The posttrial motions. The Bakers raise several issues which appear to have been raised in motions for a directed verdict and for judgment notwithstanding the verdict, but are now argued without

34 App. 5 reference to memoranda that may have been submitted with the motions, and are accompanied only with minimal references to the trial record and relevant authority. (a) There is no merit in the Bakers assertion that Hutton failed to offer admissible evidence of damages, their dispute over the testimony of Bonnie Hobson, and the assertion that their action against Hutton was not filed with the intent to cause her to expend time and money to defend their claims. These assertions do not undermine the jury s findings that the filing of the lawsuit caused Hutton damages, and that $30,000 would compensate her for the emotional distress she suffered. (b) The Bakers moved on June 22, 2009, to dismiss Hutton s counterclaim, asserting that any claim of Hutton was extinguished by her death on April 18, 2009, while the trial was ongoing. 6 The trial judge denied the motion, concluding that the jury s February 5, 2009, verdict on Hutton s counterclaim was binding and conclusive and subject to an entry of judgment on that date, although the clerk did not enter judgment on that date due to unrelated issues to be addressed by the court after the jury s verdict, which delayed entry of judgment to June 18, Bonnie Hobson was appointed guardian ad litem for Hutton on January 29, 2009, due to the progression of Hutton s Alzheimer s disease, and Hobson was substituted as a party in the trial which began of January 27, and continued to February 5, 2009.

35 App. 6 The judge did not err it concluding that the jury returned a verdict on Hutton s abuse of process claim before her death, and therefore it was unnecessary to determine whether the claim survived her death. (c) The Bakers return to the motion judge s denial of attorney s fees at the time she allowed their special motion. The judge s denial was based on the failure of their request to differentiate among the three defendants. In this court s decision on the interlocutory appeal, we noted that the Bakers request for attorney s fees related to the allowance of their 59H motion could be taken up after entry of a final judgment. Baker v. Hobson, 62 Mass. App. Ct. at In raising the issue in the present appeal, the Bakers do not indicate that they sought to pursue their request in the Superior Court after entry of final judgment, and only ask that they be awarded their reasonable costs and fees. The request is improperly directed to an appellate court and we reject it. (d) The Bakers broadly argue that at trial they raised affirmative defenses of the Statute of Frauds and the statute of limitations on each counterclaim of nuisance, trespass, and illegal tree cutting, and raise several challenges specific to those counterclaims. They assert that those counterclaims could not be sustained because Bonnie Hobson did not timely have title to the property in issue, and the defendants were barred by the Statute of Frauds from pursuing an action for damages. We think the Statute of Frauds had no application here. No writings such as a deed or assignment of rights were

36 App. 7 required in the circumstances of this case because Bonnie Hobson was in actual possession of the property. Compare New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943). The Bakers assert that because the alleged cutting of trees began in 1986 and the defendants filed their counterclaims in 2002, their action should have been limited by enforcing the statute of limitations. The judge denied a request for such an instruction. Because it appears that the defendants sought restoration costs for the lost trees as a remedy, see Ritter v. Bergmann, 72 Mass. App. Ct. 296, 304, 307 (2008), rather than compensation for the value of the cut timber, the statute of limitations has no application. Also, the jury could consider evidence of a reasonable approximation of the restoration costs. Compare Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 609 (2007). (e) The Bakers complain that the judge erred in describing their easement by prescription by identifying it as it existed on February 2, They assert that such description may result in further disputes and litigation, and request that the judgment be amended to describe the easement set forth in a survey plan identified as exhibit 13 at trial. Although the exhibit appears in our record, this request should have been made to the trial judge. Judgment entered June 18, 2009, affirmed. Order entered June 30, 2009, affirmed.

37 App. 8 By the Court (Cypher, Sikora & Hanlon, JJ.), Clerk Entered: September 28, 2011.

38 App. 9 Commonwealth of Massachusetts County of Plymouth The Superior Court CIVIL DOCKET# PLCV B John W. Baker and Susan Baker, Plaintiffs/Defendants-in-Counterclaim, vs. Bonnie Hobson, John Hobson, and Virginia Hutton, Defendants/Plaintiffs-in-Counterclaim, JUDGMENT This action came on before the Court, Barbara J. Rouse, Justice, presiding, upon a Special Motion of the plaintiffs to Dismiss Count I of the Counterclaim pursuant to M.G.L H, and the court after hearing issued a Memorandum of Decision and Order allowing said motion as to Bonnie and John Hobson only. Further this action came before the Court and a jury, Robert C. Rufo, Justice, presiding, and the issues having been duly tried and the jury having rendered and the Court having ruled upon post trial motions, It is DECLARED, ORDERED and ADJUDGED: I. It is DECLARED that John W. Baker and Susan Baker have a prescriptive easement for the benefit of Lot 1B and 2A on Clarks Island, Plymouth, MA, over that certain