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16-P-1427                                             Appeals Court

   MARGARET J. REICHENBACH & another1 vs.       TIMOTHY G. HAYDOCK
                           & another.2


                             No. 16-P-1427.

        Bristol.       September 6, 2017. - December 21, 2017.

            Present:    Wolohojian, Agnes, & Wendlandt, JJ.


"Anti-SLAPP" Statute. Constitutional Law, Right to petition
     government. Practice, Civil, Motion to dismiss.
     Massachusetts Civil Rights Act.


     Civil action commenced in the Superior Court Department on
October 1, 2015.

     A special motion to dismiss was considered by Robert J.
Kane, J., and a motion for reconsideration was considered by
him.


     Daniel C. Perry for the defendants.
     Robert B. Feingold (Heidi A. Nadel also present) for the
plaintiffs.


    WOLOHOJIAN, J.      In 2008, the plaintiffs bought an

oceanfront property with the plan to demolish the existing house


    1
        John Reichenbach.
    2
        Barbara Moss.
                                                                   2


and build a new residence.   Two of the neighbors (the

defendants, Timothy Haydock and Barbara Moss) vigorously

objected and are alleged to have for years employed a variety of

means -- some petitioning activity within the meaning of the

"anti-SLAPP" statute, G. L. c. 231, § 59H, some not -- designed

to block the project.   This suit arises out of that campaign,

which the plaintiffs allege deprived them of their

constitutional right to enjoy their property in violation of the

Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 11I (the

MCRA).3

     We are not here concerned with the merits of that claim.

Instead, we deal in this interlocutory appeal4 only with the

denial of the defendants' special motion to dismiss pursuant to

the anti-SLAPP statute.   That motion was decided before

Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141 (2017),

which was not handed down until after this appeal was already

pending.   Despite the timing, Blanchard applies,5 and applying


     3
       In addition to their MCRA claim, the Reichenbachs assert
claims of trespass and tortious interference with contractual
and advantageous relationships. These claims are not at issue
in this appeal.
     4
       An interlocutory appeal from the denial of an anti-SLAPP
special motion is available under the doctrine of present
execution. See Fabre v. Walton, 436 Mass. 517, 521-522 (2002).
     5
       "Where a decision does not announce new common-law rules
or rights but rather construes a statute, no analysis of
retroactive or prospective effect is required because at issue
                                                                     3


its approach to the first prong of the Duracraft framework, see

Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168

(1998), we affirm.

       Background.6   All of the real estate involved in this case

was once owned by Clara Frothingham in the Nonquitt area of

South Dartmouth, located on the shores of Buzzards Bay.     In

1979, the Frothingham land was subdivided into eight lots, which

were conveyed to members of Frothingham's family.     Defendant

Timothy Haydock (whom we are given to understand is part of the

Frothingham family) acquired one of those lots in 1991 (the

Haydock lot); he also has a one-sixth interest in another family

lot nearby (the Haydock family lot).     Defendant Barbara Moss,

Haydock's long-term companion, lives with him on the Haydock

lot.

       The waterfront lot at issue here (the Reichenbach lot) was

purchased by the Reichenbachs in 2008 from the trustee of the



is the meaning of the statute since its enactment." McIntire,
petitioner, 458 Mass. 257, 261 (2010), cert. denied, 563 U.S.
1012 (2011). For this reason, Blanchard applies to this case
regardless of the fact that it was decided after the decision
below. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 477
Mass. 162, 167 (2017) (remanding for consideration under the
second prong of the Duracraft framework, see Duracraft Corp. v.
Holmes Prods. Corp., 427 Mass. 156, 168 [1998], as augmented by
Blanchard); Dever v. Ward, 92 Mass. App. Ct. 175, 183-184 (2017)
(same).
       6
       Our recitation of the facts is taken from the allegations
of the complaint.
                                                                   4


Frothingham Family Holding Trust.7   The Reichenbach lot is

adjacent to the family lot in which Haydock has an interest and

is also near (but not adjacent to) the lot where Haydock and

Moss live.8   When the Reichenbach lot was owned by a member of

the Frothingham family, Haydock and Moss had permission to use

its tennis court and its stairway to the beach, leading Haydock

to "regard[ the property] as part of his 'family compound,' and

part of his backyard."   These accommodations stopped when the

Reichenbachs purchased the property.

     Although the Reichenbachs' plan to demolish the existing

house and build a new summer home implicated the State's

Wetlands Protection Act and the town of Dartmouth wetlands

protection by-law, and required one or more building permits,

there is no indication in the record on appeal that the

defendants ever asserted that the Reichenbachs were required to

obtain either a special permit or a variance under the Dartmouth

zoning by-laws.   Haydock and Moss opposed the project and, over

several years, repeatedly exercised their right to petition to


     7
       The complaint alleges that Haydock and Moss tried to
prevent sale of the property to the Reichenbachs, and urged the
trustee of the Frothingham Family Holding Trust to keep the lot
"in the family."
     8
       Directly to the south of the Reichenbach land is a lot
belonging to Paul and Ulla Sullivan (the Sullivan lot), whom we
are given to understand are also members of the Frothingham
family.
                                                                    5


various State and local officials in a continuing (and

continuous) effort to block the Reichenbachs' plans.     Their

extensive (and ultimately unsuccessful) petitioning efforts are

set out in the margin.9   The Reichenbachs claim that none of the


     9
       The bulk of Haydock and Moss's objections were raised with
the town's conservation commission and the Department of
Environmental Protection (DEP). It appears that the only
objection directed to the town's board of appeals concerned
construction of a retaining wall. The complaint alleges that
Haydock and/or Moss (a) objected to the project at several
conservation commission hearings; (b) opposed the conservation
commission's issuance of an amended order of conditions; (c)
appealed the issuance of a building permit for a retaining wall;
(d) sought an adjudicatory hearing on the DEP superseding
amended order of conditions; (e) requested that the DEP issue an
order that would have prevented construction of a new driveway,
after the defendants had revoked the Reichenbachs' license to
use the existing driveway giving access to their lot; (f)
submitted a petition to the conservation commission requesting
revocation of the original order of conditions; (g) requested
that the Dartmouth board of health hold a full public hearing on
the Reichenbachs' request for septic system approval; (h)
requested that the Reichenbachs be required to apply for a soil
removal permit; (i) complained about the repair of a security
fence along a property line in which neither Moss nor Haydock
has an interest; (j) complained about the project to a DEP
official and threatened to "call [Moss's] Congressman" to force
DEP to take action; (k) complained to the conservation
commission about tree removal; (l) engaged, in June, 2013, in a
series of complaints to the conservation commission, resulting
in the commission requiring the Reichenbachs to file a request
for determination of applicability related to work that the
Reichenbachs claim consisted merely of "field adjustments,"
which would normally be reported at the conclusion of
construction; (m) appealed to the DEP and sought a superseding
determination of applicability after the conservation commission
issued a negative determination of applicability concerning the
alleged "field adjustments"; (n) wrote to the DEP alleging
(incorrectly) that a catch basin installed in the Reichenbach
driveway was only half the required size; (o) requested an
adjudicatory hearing at the DEP after the DEP issued a
superseding negative determination of applicability as to the
                                                                    6


defendants' petitioning activities was meritorious ab initio --

a point that Moss and Haydock vigorously dispute.   In any event,

none achieved the desired aim of blocking the project.

     At the same time, Haydock and Moss also allegedly waged

their campaign on different -- nonpetitioning -- fronts,

including obstruction, interference, and dissuasion.     These

efforts were ongoing and serious, and we set them out in the

margin only to streamline this recitation and not to diminish

their significance.10   In the end, the defendants' campaign was



"field adjustments"; (p) filed an unsuccessful request for
reconsideration with the DEP after the DEP issued its final
decision affirming the superseding negative determination of
applicability; (q) appealed the DEP's final decision on the
determination of applicability to the Superior Court; and (r)
interfered with the Reichenbachs' application to the Federal
Emergency Management Agency for a letter of map revision.
     10
       Specifically, the Reichenbachs claim (a) Haydock and Moss
repeatedly removed wooden boundary stakes installed by the
Reichenbachs' land surveyor, requiring the installation of
concrete boundary markers; (b) Haydock and Moss installed metal
stakes and rope in the middle of an area over which they and
others enjoy an ocean access easement, forcing foot traffic onto
the Reichenbachs' property; (c) Moss repeatedly stood along the
Reichenbachs' southern property lines, interrogating and
harassing workers and taking photographs for prolonged periods
of time; (d) Haydock and/or Moss on numerous occasions
physically blocked construction workers and vehicles (including
a concrete mixing truck, a tree removal truck, a disposal truck,
an excavating company vehicle, and a painter's vehicle) and in
the process often harangued or berated the drivers and workers,
falsely accusing them of wrongdoing; (e) Haydock and Moss
repeatedly (and without basis) claimed that contractors'
vehicles were blocking access to the Haydock family lot; (f)
Moss interfered with workers trying to fix a security fence
along the Reichenbachs' southern boundary and falsely accused
them of trespassing; (g) in May, 2013, Haydock and Moss began to
                                                                   7


unsuccessful.   The Reichenbachs' new home was completed, and

they received a final certificate of occupancy in 2014.

     This suit followed in 2015.   In response, the defendants

filed a special motion to dismiss pursuant to the anti-SLAPP

statute.   As relief, the motion sought either that the MCRA

count be dismissed in its entirety or, in the alternative, that

thirty-eight specified paragraphs be struck from the complaint.

After a staged approach to the motion (which we describe more

fully in the margin),11 the judge denied it, finding, under the



store garbage cans and recycling bins on the property line
between the Haydock family lot and the Reichenbach lot, close to
and in view of the Reichenbach home; (h) in October, 2013, Moss
stopped utility workers from installing a transformer on the
Reichenbach lot; (i) Haydock and Moss trespassed on the
Reichenbachs' land; (j) Haydock and Moss induced the Nonquitt
Association to require the Reichenbachs to stop work in the
summer months (even though that kind of work was ordinarily
allowed); (k) Haydock threatened to plant a row of trees to
block the Reichenbachs' view; and (l) Moss threatened to ruin
the Reichenbachs' reputation in Nonquitt and promised that Moss
and Haydock's tactics would cost the Reichenbachs an enormous
amount of money.
     11
       First, the judge ordered the defendants to group the
challenged paragraphs of the Reichenbachs' complaint by subject
matter, and to show how each group of activities qualified as
petitioning for purposes of the anti-SLAPP statute. Thereafter,
the judge issued his "Rulings and Order on Defendants' Threshold
Burden," finding that all but four of the paragraphs identified
by the special movants concerned petitioning activity. The
judge went on to decide that count I "is based on defendants'
'petitioning activities alone and has no substantial basis other
than or in addition to [their] petitioning activities,'" and,
thus, the defendants had satisfied their burden under the first
stage of the Duracraft framework. See 427 Mass. at 167-168. In
keeping with the second stage of the Duracraft framework, see
id. at 168, the judge then required the Reichenbachs to submit
                                                                    8


second stage of the Duracraft framework, see 427 Mass. at 168,

that Haydock and Moss's activities were devoid of any reasonable

basis in fact or arguable basis in law and were thus unprotected

sham petitioning.12

     Discussion.   Claims that are "based on [a] party's exercise

of its right of petition under the constitution of the United

States or of the commonwealth" are subject to dismissal under

the anti-SLAPP statute via a special motion to dismiss.13   G. L.

c. 231, § 59H, inserted by St. 1994, c. 283, § 1.   While the

statute's purpose is to "dispose expeditiously of meritless

lawsuits that may chill petitioning activity," its application

has caused much difficulty because "[b]y protecting one party's

exercise of its right to petition, unless it can be shown to be

sham petitioning, the statute impinges on the adverse party's

exercise of its right to petition, even when it is not engaged


materials demonstrating that "the petitioning activity 'was
devoid of any reasonable factual support or any arguable basis
in law'" and that the defendants' acts caused actual injury to
the Reichenbachs. G. L. c. 231, § 59H, inserted by St. 1994,
c. 283, § 1.
     12
       The judge also found that the plaintiffs at this stage
had sufficiently demonstrated actual injury in the form of
expenditures of money and severe emotional distress.
     13
        As we have noted, the defendants' special motion sought,
in the alternative, to strike certain paragraphs of the
complaint. However, the remedy identified in the anti-SLAPP
statute is dismissal -- whether complete or partial -- not the
striking of individual factual allegations of a complaint, which
instead is governed by Mass.R.Civ.P. 12(f), 365 Mass. 754
(1974).
                                                                   9


in sham petitioning."   Duracraft, 427 Mass. at 166-167.   To

address this concern, the Supreme Judicial Court formulated a

two-step framework in 1998, which has come to be called the

Duracraft framework.    However, recognizing continuing problems

of overbreadth in the statute's application, the court recently

revisited the Duracraft framework in Blanchard v. Steward Carney

Hosp., Inc., 477 Mass. 141 (2017).   Blanchard is a significant

development in our anti-SLAPP jurisprudence for two reasons.

First, it augments the second prong of the Duracraft framework

so as to provide a new, alternate method by which the nonmoving

party can show that "its suit was not 'brought primarily to

chill' the special movant's legitimate exercise of its right to

petition," Blanchard, 477 Mass. at 159.    Second, it clarifies

the application of Duracraft's stage one analysis.    Although

Blanchard represents a significant development, it supplemented,

and did not overrule, Duracraft.

     In this case, we are concerned only with the first prong

of the Duracraft framework, as its application has been

explicated by Blanchard.   At the first stage, the moving party

has the burden to demonstrate "that the claims against it are,

in fact, 'based on' its petitioning activities alone and have no

substantial basis other than or in addition to its petitioning

activities."   Office One, Inc. v. Lopez, 437 Mass. 113, 122

(2002), citing Duracraft, 427 Mass. at 167-168.    At this stage
                                                                  10


of the inquiry, "the motive behind the petitioning activity is

irrelevant," and "[t]he focus solely is on the conduct

complained of."   Office One, supra, citing Fabre v. Walton, 436

Mass. 517, 523-524 (2002).    Because the first stage of the

Duracraft analysis is, like the analysis of an ordinary motion

to dismiss under Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974),

directed to examining the allegations of the complaint, our

review is "fresh and independent," i.e., de novo.14    Blanchard v.

Steward Carney Hosp., Inc., 89 Mass. App. Ct. 97, 103 (2016),

S.C., 477 Mass. 141 (2017).

     Special movants survive the threshold phase of the

Duracraft framework if they establish (1) the complained of

conduct is petitioning activity; (2) the petitioning activity is

their own petitioning activity; and (3) the nonmoving party's

claims are solely based on the petitioning activity.     Blanchard,

477 Mass. at 153 n.19 (and cases collected therein).    Here,

Haydock and Moss are alleged to have engaged in many examples of

petitioning activity (see note 9, supra) in their effort to halt

the Reichenbach building project.    Thus, they have easily

satisfied the first two elements.   The third element is the rub.

Given the nonpetitioning activity in which Haydock and Moss are

also alleged to have engaged (see note 10, supra), the question


     14
       By contrast, we apply an abuse of discretion standard to
the second prong of the analysis. Blanchard, 477 Mass. at 160.
                                                                    11


is whether they have demonstrated that the MCRA claim has "no

substantial basis other than or in addition to" their

petitioning activity.   Office One, 437 Mass. at 122.

    Blanchard clarified the analysis to be employed in stage

one of the Duracraft framework when the special movant can

demonstrate that "a portion of the nonmoving party's claim is

based on petitioning activity."   477 Mass. at 153.     "[W]hen

ascertaining whether petitioning activity is the sole basis of a

claim, the structure of the nonmoving party's complaint

ordinarily cannot be dispositive of the matter" because, were

the opposite rule to apply, plaintiffs could easily avoid the

consequences of the anti-SLAPP statute by "combining into a

single count claims that are based on both petitioning and non-

petitioning activities."   Id. at 155.   Thus, the fact that both

petitioning and nonpetitioning activities are together alleged

as the basis of a single cause of action (in this case,

violation of the MCRA) is not dispositive of the special motion

to dismiss.   If the claim "readily could have been pleaded as

separate counts," then we must examine the independently

actionable acts as though separately pleaded.    Ibid.

    To see this principle in practice, we compare Blanchard

with 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162

(2017), which the Supreme Judicial Court decided the same day.

In Blanchard, two separate types of statements (an internal
                                                                  12


electronic mail message [e-mail] to employees and statements

made to the Boston Globe) were the basis for a single defamation

claim.   Concluding that each type of statement could have been

equally pleaded as a separate claim of defamation, the court

analyzed them separately for purposes of the first prong of

Duracraft.   The court then went on to find that the statements

quoted in the newspaper constituted petitioning activity but

that the internal e-mail did not -- which meant that the special

movants in that case had met their threshold burden as to only a

portion of the defamation claim.    See Blanchard, 477 Mass. at

153, 161.    By contrast, in 477 Harrison, the Supreme Judicial

Court affirmed the denial of a special motion to dismiss a

c. 93A, § 11, claim, where the underlying facts pleaded included

both petitioning and nonpetitioning activity.    The court

concluded that, because nonpetitioning activity "provide[d] a

substantial nonpetitioning basis" for the c. 93A claim, the

defendants had failed to show, under the first stage of the

Duracraft framework, that the claim was "solely based on their

petitioning activity."    477 Harrison, 477 Mass. at 171.    In

other words, with respect to the c. 93A claim, the

nonpetitioning activity could not be separated from the

petitioning activity.

    Read together, these cases illustrate that where the

individual underlying acts can each independently support the
                                                                    13


asserted cause of action, then they are to be analyzed

separately for purposes of the first prong of the Duracraft

test.    This analysis should be undertaken with an eye toward the

particular cause of action:   where a course of conduct is the

basis of the claim, such as is typical of c. 93A claims, as in

477 Harrison, then the acts should not be parsed one from the

other; where the individual acts can stand alone to support the

cause of action (as in the individual statements underlying the

defamation claim in Blanchard), they should be examined one by

one.    The analysis depends on the nature of the cause of action

alleged and the theory of the complaint.

       The cause of action at issue here is violation of the MCRA

on a theory that the defendants' behavior (considered in its

totality) constituted threats, intimidation, or coercion.     This

is a typical presentation of an MCRA claim, particularly in the

context of a land use case such as here.    An MCRA claim is often

based on multiple or repeated acts that if taken individually

would be insufficient to make out the claim but if taken

collectively are sufficient to constitute threats, intimidation,

or coercion.   See, e.g., Haufler v. Zotos, 446 Mass. 489, 506-

508 (2006) (pattern of "persistent and antagonistic" conduct

satisfied MCRA).   See also Bell v. Mazza, 394 Mass. 176, 180,

183 (1985) (course of conduct consisting of threats,

"intemperate epithets," and physical obstruction satisfied
                                                                   14


MCRA); Ayasli v. Armstrong, 56 Mass. App. Ct. 740, 753 (2002)

("While no single point is determinative, the aggregate facts of

this case are sufficient to create a jury question whether the

defendants' conduct as a whole violated G. L. c. 12, § 11I");

Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 835-836 (2015)

(series of activities, including threats and physical

inconveniences, aimed at forcing plaintiffs from condominium

satisfied MCRA).15

     Here, the complaint alleges that a lengthy pattern of

abuses by the defendants collectively amounted to threats,

intimidation, or coercion under the MCRA.16   The claim is based

on the fact pattern as a whole, not on isolated incidents, any

one or more of which might be considered insufficient to support

a civil rights claim when separated from the rest.   Thus,

although the alleged behavior includes petitioning activities,

the Reichenbachs' claim is not based solely on petitioning

activities and asserts a substantial basis beyond petitioning.




     15
       We note, however, that in some circumstances a single act
can violate the MCRA. See, e.g., Batchelder v. Allied Stores
Corp., 393 Mass. 819, 823 (1985) (uniformed security guard's
order that plaintiff stop distributing political handbills
sufficient to support MCRA claim).
     16
       Whether any of the plaintiffs' allegations regarding
Haydock and Moss's petitioning activities can ultimately support
an award of damages under G. L. c. 12, §§ 11H and 11I, is a
separate question.
                                                                     15


See Duracraft, 427 Mass. at 168 (denying motion to dismiss where

a substantial basis existed beyond petitioning activity).

       The conclusion we reach here is consistent with cases

presenting similar facts.    In Ayasli, we upheld the denial of a

special motion to dismiss because "[a]lthough one could infer

that the defendants' persistent petitioning activities played a

role in the plaintiffs' decision to file the complaint, there

was also an independent basis for the complaint -- that the

defendants were intentionally interfering with the plaintiffs'

right to use and enjoy their property."    56 Mass. App. Ct. at

748.    The defendants had protested the plaintiffs' building

project to members of the local conservation commission, the

building inspector, the local zoning board of appeals, and,

eventually, the Superior Court.    Id. at 743-746.   But there was

also evidence that the defendants had employed a variety of

nonpetitioning methods to harass, threaten, and dissuade the

plaintiffs from continuing with their project.17     This bundle of

activity, strikingly similar to that alleged in this case

       17
       Specifically, the defendants' dogs had frightened the
plaintiffs' children; the defendants' family hit golf balls into
the water on the plaintiffs' land; the defendants directed
traffic to the plaintiffs' house to an impassable old right-of-
way; and one of the defendants had stated, "This is not the end.
We will do everything we can to stop this project," had referred
to the plaintiffs' contractor as the plaintiffs' "dupe," told
the contractor that the defendant had a video camera and would
record the building project, and entered the plaintiffs'
property to take photographs. Ayasli, 56 Mass. App. Ct. at 742-
745, 748-749.
                                                                     16


(compare notes 10 & 17, supra), collectively supported the MCRA

claim in addition to the petitioning activity.      Id. at 748-749.

Similarly, in Garabedian v. Westland, 59 Mass. App. Ct. 427

(2003), some of the defendants' challenges to the plaintiff's

project constituted petitioning activity, but "[o]ther aspects

of [the defendants'] intervention . . . were private and lacked

the characteristics of petition, namely the harassing of

Garabedian's contractor and the somewhat intrusive surveillance

of Garabedian's activity."     Id. at 432.   Because some of the

activities targeted the plaintiff directly, and "involved no

supplication to higher authority," the plaintiff's declaratory

judgment action "was not based alone on the petitioning

activities of the neighbors."     Id. at 433.

    For these reasons, Haydock and Moss failed to meet their

threshold burden under Duracraft, and their special motion to

dismiss was properly denied.    Because we reach this conclusion

based on the first stage of the Duracraft analysis, we need not

consider the second stage.

                                      Order denying special motion
                                         to dismiss affirmed.18




    18
         Each party's motion for costs on appeal is denied.
