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19-P-866                                             Appeals Court

 AMHERST COMMUNITY TELEVISION, INC.    vs.   GERALD G. GUIDERA, JR.


                 No. 19-P-866.        May 5, 2020.


"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss,
     Interlocutory appeal.


     In this interlocutory appeal, Gerald Guidera, the
defendant, seeks reversal of a Superior Court judge's order
allowing Amherst Community Television's (ACT) special motion to
dismiss Guidera's counterclaims pursuant to the anti-SLAPP1
statute, G. L. c. 231, § 59H. For the reasons that follow, we
conclude that the appeal is not properly before us.

     The underlying dispute concerns ACT's claim that Guidera
was aware of, but failed to disclose, certain defects in real
property (the property) sold to ACT by Guidera's mother. ACT's
second amended complaint alleged claims for common-law fraud and
unfair and deceptive business practices under G. L. c. 93A.2
Guidera filed counterclaims alleging abuse of process, malicious
prosecution, interference with contractual relations, civil
conspiracy, and violations of G. L. c. 93A and the Massachusetts
Civil Rights Act. In essence, the counterclaims alleged that
ACT's lawsuit sought to extort money from Guidera and to prevent
him from speaking against ACT's application for a zoning
variance regarding the property.


     1 The acronym "SLAPP" stands for Strategic Lawsuit Against
Public Participation. See Baker v. Parsons, 434 Mass. 543, 544
n.2 (2001).

     2 The fraud claim was dismissed as untimely pursuant to
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).
                                                                   2


     ACT filed a special motion to dismiss the counterclaims
pursuant to G. L. c. 231, § 59H, arguing that Guidera's
counterclaims lacked "a substantial basis other than or in
addition to [ACT's] petitioning activities."3 After a hearing,
the motion judge agreed. In a comprehensive written decision,
the motion judge allowed ACT's special motion to dismiss,
reasoning that the counterclaims were "intended to chill ACT's
legitimate petitioning activities" and were not "colorable."
This appeal followed.

     Where "a case involves multiple claims and multiple
parties, a judgment dismissing fewer than all of the claims or
parties is interlocutory and . . . [is] not immediately
appealable absent a 'determination [by a judge in the trial
court] that there is no just reason for delay and upon an
express direction for the entry of [final] judgment.'" Harrison
v. Roncone, 447 Mass. 1001, 1001-1002 (2006), quoting Mass. R.
Civ. P. 54 (b), 365 Mass. 820 (1974). As a general rule, "an
appellate court will reject attempts to obtain piecemeal review
of trial rulings that do not represent final dispositions on the
merits" (citation omitted). Fabre v. Walton, 436 Mass. 517,
520-521 (2002).

     There are exceptions to this general rule. For example,
the doctrine of present execution provides that an "immediate
appeal of an interlocutory order is allowed if the order will
interfere with rights in a way that cannot be remedied on appeal
from the final judgment." Fabre, 436 Mass. at 521. The Supreme
Judicial Court has held that this exception applies after the
denial of a special motion to dismiss because the protections of
the anti-SLAPP statute would be lost if the petitioner were
forced to litigate a case to conclusion before seeking appellate
relief. Id. at 521-522. "Conversely, when a special motion to
dismiss -- which is not dispositive of the entire case -- is
allowed, the nonmoving party's appeal after a final judgment is
not futile. . . . If the judge were incorrect in allowing the
special motion, the claim improperly dismissed can be

    3  To prevail on a special motion to dismiss, the moving
party must make a threshold showing that the claims against it
are based on petitioning activity alone. The burden then shifts
to the nonmoving party to show that the moving party's exercise
of its right to petition was devoid of any reasonable factual
support or any arguable basis in law, or that the nonmoving
party's claim, viewed as a whole, was nonetheless not a SLAPP
suit. Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141,
155-159 (2017), S.C., 483 Mass. 200 (2019).
                                                                   3


resurrected." (Emphasis added.)   Metzler v. Lanoue, 62 Mass.
App. Ct. 655, 657 (2004).

     Here, it is undisputed that ACT's special motion to dismiss
did not resolve all pending claims and that Guidera did not
request, and the judge did not direct, a separate and final
judgment under rule 54 (b). In these circumstances, we have
said that "the allowance of the special motion to dismiss --
which is not dispositive of all claims and is not the subject of
a rule 54(b) certification -- is not immediately appealable
because it does not render futile plaintiff's rights of appeal
from final judgment." Metzler, 62 Mass. App. Ct. at 657-658,
citing Borman v. Borman, 378 Mass. 775, 779-782 (1979), and
Fabre, 436 Mass. at 521.

     We are not persuaded by Guidera's argument that Van Liew v.
Stansfield, 474 Mass. 31 (2016), compels a different result.
There, the Supreme Judicial Court, in the exercise of its
discretion, held that in a case pending in the District Court, a
party who seeks to appeal from the denial or the allowance of a
§ 59H special motion to dismiss should file the appeal in the
Appeals Court rather than in the Appellate Division of the
District Court Department.4 Id. at 35-36. See Zullo v. Goguen,

     4 In Van Liew, the Appellate Division of the District Court
Department vacated an order of the District Court that had
allowed an anti-SLAPP special motion to dismiss all of the
plaintiff's underlying claims, and remanded the case to the
District Court for trial. Van Liew, 474 Mass. at 34. (The
District Court order was immediately appealable because
allowance of the special motion to dismiss resolved all pending
claims; by vacating that order, the Appellate Division
essentially denied the special motion. See id. at 35.) When
the defendant filed an appeal from the Appellate Division's
decision, the plaintiff sought dismissal of the appeal, arguing
that the Appellate Division's decision was interlocutory and
that there was no final judgment from which to appeal. Id. at
34. The Supreme Judicial Court rejected that argument. Citing
Fabre, 436 Mass. at 521-522, the court first noted that its
prior holding that appeals from orders denying special motions
to dismiss should go directly to the Appeals Court applied
equally to appeals from such orders issued by the Appellate
Division. Van Liew, supra at 35. The court then held more
generally that, going forward, a party seeking to appeal from a
District Court order allowing or denying a special motion to
dismiss should bypass the Appellate Division and proceed
directly to the Appeals Court. Id. at 35-36.
                                                                  4


423 Mass. 679, 681 (1996) ("[The Supreme Judicial Court] has
wide discretion in devising various procedures for the course of
appeals in different classes of cases" [quotation and citation
omitted]). We do not interpret the holding in Van Liew to
change the rules regarding the appealability of anti-SLAPP
orders. Rather, Van Liew stands for the limited proposition
that District Court rulings on anti-SLAPP motions that are
immediately appealable should proceed directly to the Appeals
Court, rather than the Appellate Division of the District Court.
Certainly, nothing in Van Liew's language suggests that it was
intended to overrule Metzler or our "bedrock policy against
premature and piecemeal appeals." Metzler, 62 Mass. App. Ct at
657, quoting Long v. Wickett, 50 Mass. App. Ct. 380, 388 (2000).

     For all of these reasons, we conclude that Guidera's
interlocutory appeal is premature. The appeal is dismissed, and
the case is remanded to the Superior Court for resolution of the
remaining claims.5

                                   So ordered.


     Peter Vickery for the defendant.
     Paul G. Boylan (Kevin G. Kenneally also present) for the
plaintiff.




     5 The plaintiff's request for appellate attorney's fees is
denied.
