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JESSE C. UTTARO

vs.

JANET B. UTTARO.

 

Docket No.: 00-P-160

 

MASSACHUSETTS COURT OF APPEALS

County: Middlesex.

December 17, 2001.

May 28, 2002.

 

 


 

Abuse Prevention. Statute, Construction.

Complaint filed in the Middlesex Division of the Probate and Family Court Department on July 22, 1999.

The case was heard by Sheila E. McGovern, J.

Patricia A. Levesh for the defendant.

Present: Greenberg, Mason, & Doerfer, JJ.

GREENBERG, J.

Janet Uttaro appeals from a restraining order made mutual and applied against her by a judge in the Middlesex Probate and Family Court, who had heard testimony that Jesse Uttaro was in fear of further enforcement of the original order lodged against him. We vacate the order against Janet.

As background to the controversy, it is necessary to describe the events that spawned it. The Uttaros' marital strife surfaced in August, 1998, when Janet, upon demonstrating that she had been abused physically and otherwise by Jesse, secured a G. L. c. 209A, 3, abuse prevention order against him in Waltham District Court, the order to run until December 3, 1998.(FN1) On September 8, 1998, Jesse filed a divorce complaint in the Middlesex Probate and Family Court. The terms of the District Court G. L. c. 209A order were later modified by a Probate Court judge to allow Jesse telephone contact with the parties' three children, who at that time continued to reside with Janet in the marital home in Waltham. In all other respects, the order remained the same.

On January 12, 1999, after the original District Court order had expired, Janet obtained another G. L. c. 209A order from the Middlesex Probate and Family Court, presumably on a showing of her continuing need. See Pike v. Maguire, 47 Mass. App. Ct. 929, 929-930 (1999); Commentary to 6:08 of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (1997). Jesse failed to appear on the return date, and this order was extended until January 21, 2000.

The parties' domestic arrangement changed in the summer of 1999: Jesse moved back into the marital residence with the parties' children -- two daughters, at that time ages eighteen and nineteen, and a son, age fifteen. Janet took up residence on her own but maintained close contact with the children, picking them up and driving them to various locations. The problem with this arrangement, among others, was that the consequent interaction involving the children caused the parties to clash.
 
During the middle of the summer in 1999, the middle child was in the hospital. Her brother tried to contact her or find out about her condition by telephone. The call was directed to Janet, who was at her daughter's bedside. According to Janet, their conversation was rudely interrupted by Jesse, who grabbed the telephone from the son and cursed at Janet for not disclosing that their daughter was in the hospital. After this incident, Janet applied for a criminal complaint against Jesse in the Waltham District Court.

Jesse was arrested, but his motion to vacate the G. L.c. 209A order, later supplemented with an affidavit, was allowed on July 15, 1999. Janet did not appear at the hearing on this motion; however, she obtained another G. L. c. 209A order from the Middlesex Probate and Family Court on July 19, 1999, returnable on July 22, 1999.

Both parties appeared on July 22, before a different Probate Court judge. Jesse applied for a G. L. c. 209A order to protect himself from what he considered selective prosecution of the prior orders against him. A bar advocate was appointed to represent Janet, and Jesse was represented by private counsel. As might be expected, conflicting testimony was presented to the judge as to whether Janet unjustifiably had Jesse arrested for violations of the no-contact orders. The hearing was acrimonious and emotional. The vitriolic comments of the parties got out of hand. At one point, the judge suggested a psychiatric referral. The judge's patience was taxed as she tried to broker an acceptable arrangement to accommodate the parties' needs. Her attempt failed, and on August 11, 1999, she issued written findings and rulings supporting an extension of the July 19, 1999, order against Jesse, until July 21, 2000, and a G. L. c. 209A no-contact order against Janet, from which she appeals.(FN2)

Analysis. The crucial issue in a G. L. c. 209A dispute is whether the party who seeks protection has proven, by a preponderance of the evidence, that abuse has occurred. Frizado v. Frizado, 420 Mass. 592, 597 (1995). Among other things, G. L. c. 209A, 1, as appearing in St. 1990, c. 403, 2, defines abuse as "attempting to cause or causing physical harm" or "placing another in fear of imminent serious physical harm." This language closely approximates the common-law description of assault, see Commonwealth v. Gordon, 407 Mass. 340, 349 (1990), and requires proof of some act that places the complainant in reasonable apprehension that force may be used. Commonwealth v. Delgado, 367 Mass. 432, 436-437 (1975). The complainant's "[g]eneralized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress," is insufficient. Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638-639 (1998).
 
In the instant case, the probate judge expressed doubt whether Jesse's representations satisfied the requisite burden of proof outlined by the cases.(FN3) What troubled her was Janet's placing Jesse at risk for arrest from what she described as "unilaterally acting different than with the restraining order," that is, Janet's calling the police to have Jesse arrested on the basis of conduct that she either initiated or exaggerated out of proportion. She found that Janet "selectively sought enforcement of the existing restraining order[,] alleging violations" in two questionable instances. One involved the hospital telephone call already mentioned and the other occurred on June 14, 1999, when Jesse drove in front of her home while she was having an outdoor barbeque, honking his horn and shouting epithets as he drove past. The judge also noted that Janet admitted that she had appeared at the former martial home, repeatedly contacted Jesse by telephone, and had gone out to dinner with Jesse.(FN4) Ultimately, the judge found that Janet's reactions to Jesse's vexatious behavior "placed [his] liberty in jeopardy in that she has forced him to possibly violate the existing restraining orders... issued to him, thereby subjecting him to abuse under the terms of [c.] 209A." The judge strayed by concluding that Jesse's fear of arrest justified the issuance of a protective order against Janet. In essence, she reinstated Janet's protective order against Jesse, which had previously been vacated, and, to appease Jesse, issued a mutual no-contact order against Janet issued pursuant to G. L. c. 209A, 3.(FN5)

Although we empathize with the judge's dilemma in this case, nothing in the record supports a finding that Janet "abused" Jesse, as the cases have defined that term in the statute. We take this opportunity to emphasize that applications for retaliatory abuse prevention orders should only be allowed if the predicate conditions are shown and not as a prophylactic agent to prevent putative violations.

The bottom line is that neither G. L. c. 209A, nor the decisions interpreting it, contain any authority allowing the fear of arrest, even upon innocent contact, as a basis for a reciprocal restraining order. The stringent requirements in G. L. c. 209A, 3, appear not without purpose and reflect a legislative policy against the issuance of mutual restraining orders except in rare instances. See Gender Bias Study of the Supreme Judicial Court 93-94 (1989). See also Note, Why Civil Protection Orders are Effective Remedies for Domestic Violence but Mutual Protective Orders Are Not, 67 Ind. L.J. 1039, 1061-1062 (1992). As Janet observes in her brief, a mutual restraining order in this case creates confusion not only for law enforcement authorities who must interpret conflicting terms contained in the protective orders, but also for the parties and the courts because each party has been directed not to contact one another. Moreover, allowing mutuality in restraining orders would chill the abuse prevention system established by G. L. c. 209A, placing the victim in fear of the consequences of strict (or lax) enforcement of prior orders, cf. Sommi v. Ayer, 51 Mass. App. Ct. 207, 210-211 (2001), particularly where "contact" has been broadly interpreted. Commonwealth v. Finase, 435 Mass. 310, 314 (2001). Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, 687 (2001).
 
An important postscript lurks in this case: Janet seeks to add the phrase "nunc pro tunc" to our vacating of this order in this case. See Santos v. Chrysler Corp., 430 Mass. 198, 216 (1999). We need not do so. The Supreme Judicial Court has already decided that the registry created by G. L. c. 209A, 7, includes specific measures to ensure that the record of a vacated restraining or protective order will be eliminated, thereby obviating the possibility of public disclosure or possible service of a vacated order. Vaccaro v. Vaccaro, 425 Mass. 153, 157-159, 161-162 (1997). These mechanisms are sufficient safeguards for Janet, without our intrusion into the legislative thicket.

Janet is therefore entitled to have vacated that portion of the August 11, 1999, order that directs her to have no contact with Jesse.

So ordered.

NOTES:

(FN1). By virtue of the District Court order, Jesse was ordered to refrain from abusing Janet, not to contact her, to remain fifty yards away from her person (except that he could page their children), to immediately leave and stay away from the marital residence and Janet's workplace, to surrender his firearms, to stay away from the marital vehicle, to pay the first and second mortgages on the premarital residence, and to return funds to a joint bank account. At that time, Janet was awarded custody of their children.

(FN2). Jesse did not file a brief in this appeal, and he has not appealed from the August 11, 1999, renewal of Janet's restraining order against him.

Although not raised, we note that Janet's appeal is technically moot, the order against her having expired on July 21, 2000. Compare Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998), with Wotan v. Kegan, 428 Mass. 1003, 1003-1004 (1998). However, the proper issuance of mutual restraining orders is an issue of statewide legal significance that warrants a decision in this case despite its mootness. See Cobb v. Cobb, 406 Mass. 21, 23-24 (1989); Frizado v. Frizado, 420 Mass. 592, 593-594 (1995); Larkin v. Ayer Div. of Dist. Ct. Dept., 425 Mass. 1020, 1020 (1997). Cf. Zullo v. Goguen, 423 Mass. 679, 680 (1996).

(FN3). Jesse's application for G. L. c. 209A relief does not indicate which definition of abuse he invoked since he did not check off any box in section J of the form complaint. He merely inserted the words "see affidavit" in that section, presumably a reference to the affidavit supplementing his motion to vacate. Further, neither his affidavit nor his testimony at the hearing included any details of physical or sexual abuse, either actual or attempted.
 
(FN4). To illustrate the selectivity, Jesse detailed in his affidavit other instances, which the judge did not cite in her written findings and rulings, in which Janet's actions were inconsistent with the G. L. c. 209A order: Janet had called Jesse when she had a flat tire, and she had told one of their children that it was not a violation of the order for Jesse and her to attend one of their daughter's graduation exercises together.

(FN5). Section 3, as amended by St. 1990, c. 403, 3, provides in part: "A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order."
 


 


 

---------------

781 N.E.2d 780

436 Mass. 517

Sean FABRE
v.
Amalia WALTON & another.1

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 3, 2001.

Decided April 12, 2002.

Page 781

 


 
        John P. Fulginiti (Ann Wagner with him), Boston, for the defendant.

        Bruce T. Macdonald, Cambridge, for the plaintiff.

        William J. Meade, Assistant Attorney General, for the intervener.

        The following submitted briefs for amici curiae:

Page 782

        Sarah R. Wunsch, Boston, for The American Civil Liberties Union of Massachusetts.

        Wendy J. Murphy, Marilyn Lee-Tom, & Allan Rodgers, Boston, for Jane Doe, Inc., & others.

        Pauline Quirion & Jamie Ann Sabino, Cambridge, for The Women's Bar Association of Massachusetts & another.

        Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, CORDY, JJ.

        CORDY, J.

        Amalia Walton sought and obtained an abuse protection order against Sean Fabre. In response, Fabre filed a civil complaint against Walton asserting a single claim of abuse of process arising out of her application for the abuse protection order. Walton filed an unsuccessful special motion to dismiss pursuant to G.L. c. 231, 59H (commonly known as the anti-SLAPP statute), and appealed the denial of that motion to the county court pursuant to G.L. c. 211, 3.

        We decide two issues: first, whether there is a right to interlocutory appellate review when a trial judge denies a special motion to dismiss pursuant to the anti-SLAPP statute and second, whether the motion judge erred in denying Walton's special motion to dismiss.

        1. Background.

        Walton and Fabre dated for approximately three years. At the end of their relationship, Walton filed a complaint against Fabre in the Dedham Division of the District Court Department for protection from abuse pursuant to G.L. c. 209A. The complaint was accompanied by an affidavit in which she described Fabre's behavior toward her. The District Court judge who reviewed the complaint ex parte found that Fabre's behavior toward Walton was "controlling and oppressive" and that Walton was "visibly very frightened." Based on these findings, the judge issued a temporary abuse prevention order.

        A hearing to extend the temporary order was held on April 10, 2000. Fabre and Walton were each represented by counsel and both testified. Fabre's roommate also testified, and Fabre's attorney attempted to elicit testimony from him that a friend of Walton told him that Walton told her that she had applied for the abuse prevention order so that it would appear on Fabre's future job applications and necessitate his explaining it to future employers. The judge excluded this testimony as hearsay. After the hearing, the judge ruled that Walton had demonstrated by a preponderance of the evidence that she required the continued protection of the court, and extended the restraining order for six months.2

        Fabre did not appeal from the order, but filed a civil complaint in the Cambridge Division of the District Court Department claiming abuse of process against Walton. In his complaint, Fabre asserted that Walton's affidavit and her testimony at the 209A hearing were false, that she had not been abused, and that her filing of the 209A complaint was for the

Page 783

ulterior purpose of causing him "future embarrassment and repercussions in his employment, his career choices, and otherwise."3

        Walton filed a special motion to dismiss Fabre's complaint pursuant to the anti-SLAPP statute.4 The judge denied her motion without findings or explanation. Walton filed a motion for reconsideration, or in the alternative, for a report of the ruling to the Appellate Division of the District Court Department for interlocutory review,5 both of which were also denied. Walton then petitioned the county court pursuant to G.L. c. 211, 3, seeking relief. After a hearing, a single justice reserved and reported the case to the full bench and stayed the District Court proceedings.

        2. Discussion.

        In enacting the anti-SLAPP statute, "the Legislature intended to immunize parties from claims `based on' their petitioning activities." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167, 691 N.E.2d 935 (1998). Accordingly, the statute provides broad protections for individual who exercise their right to petition from harassing litigation and the costs and burdens of defending against retaliatory lawsuits.6 Id. at 161-162, 691 N.E.2d 935. In this regard, they are similar in purpose to the protections afforded public officials by the doctrine of governmental immunity.

        The protections afforded by G.L. c. 231, 59H, include a procedural remedy that permits the defendant in a SLAPP suit to file a "special" motion to dismiss early in the litigation, which a judge shall grant, "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 acts caused actual injury to the responding party." They also include the automatic stay of discovery on the filing of a special motion to dismiss.

        Right to an interlocutory appeal. "It is settled that absent `special authorization,' ... `an appellate court will reject attempts to obtain piecemeal review of trial rulings that do not represent final dispositions on the merits.'" Ashford v.

Page 784

Massachusetts Bay Transp. Auth., 421 Mass. 563, 565, 659 N.E.2d 273 (1995), quoting Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167, 169, 360 N.E.2d 1048 (1977), and R.J.A. v. K.A.V., 34 Mass.App.Ct. 369, 372, 611 N.E.2d 729 (1993). The policy underlying this rule is that "a party ought not to have the power to interrupt the progress of the litigation by piecemeal appeals that cause delay and often waste judicial effort in deciding questions that will turn out to be unimportant." Borman v. Borman, 378 Mass. 775, 779, 393 N.E.2d 847 (1979), quoting Vincent v. Plecker, 319 Mass. 560, 563 n. 1, 67 N.E.2d 145 (1946). Consistent with this rule, the denial of a motion to dismiss is ordinarily not an appealable order. See Bean v. 399 Boylston St., Inc., 335 Mass. 595, 596, 141 N.E.2d 363 (1957).

        There are limited exceptions to this rule, one of which is the doctrine of present execution. Under that doctrine, 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. See Mitchell v. Forsyth, 472 U.S. 511, 524-525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). See also Borman v. Borman, supra at 779-782, 393 N.E.2d 847. Interlocutory orders relating to claims of governmental immunity from suit are appealable pursuant to the doctrine of present execution because "[t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial" (emphasis in original). Mitchell v. Forsyth, supra at 526, 105 S.Ct. 2806. See Brum v. Dartmouth, 428 Mass. 684, 688, 704 N.E.2d 1147 (1999) ("The right to immunity from suit would be `lost forever' if an order denying it were not appealable until the close of litigation ...").

        As in the governmental immunity context, the denial of a special motion to dismiss interferes with rights in a way that cannot be remedied on appeal from the final judgment. The 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. Accordingly, we hold that there is a right to interlocutory appellate review from the denial of a special motion to dismiss filed pursuant to the anti-SLAPP statute.7

        Having established a right to interlocutory review, we next turn to the question where that review should occur. SLAPP suits may originate in different venues with different avenues of appeal. In the present case, the suit was brought in the District Court where the route for the appeal of interlocutory orders is less certain than the route available from other courts. Compare Rule 5 of the Dist./Mun. Cts. Rules for Appellate Division Appeal (2001) with G.L. c. 231, 118. "This court has `wide discretion in devising various procedures for the course of appeals in different classes of cases.'" Zullo v. Goguen, 423 Mass. 679, 681, 672 N.E.2d 502 (1996), quoting Flynn v. Warner, 421 Mass. 1002, 1003, 654 N.E.2d 926 (1995). In the exercise of this discretion, we conclude that, for purposes of certainty, uniformity of treatment of litigants, and the development of a consistent body of law, an interlocutory appeal from the denial of a special motion to dismiss should proceed to the Appeals Court regardless of the

Page 785

court in which the SLAPP suit was brought.

        Walton's special motion to dismiss. After reviewing the judge's denial of Walton's special motion to dismiss,8 we conclude that its denial was erroneous. McLarnon v. Jokisch, 431 Mass. 343, 348, 727 N.E.2d 813 (2000).

        The party filing a special motion to dismiss has the initial burden of demonstrating that the activity at issue is "petitioning" activity within the purview of the anti-SLAPP statute and that the claims in the litigation "are `based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168, 691 N.E.2d 935 (1998). The petitioner has met these requirements. The filing of a complaint for an abuse protection order and the submission of supporting affidavits are petitioning activities encompassed within the protection afforded by G.L. c. 231, 59H. See McLarnon v. Jokisch, supra at 347, 727 N.E.2d 813. In addition, a cursory review of Fabre's complaint, which simply recounts and complains of Walton's conduct in bringing and testifying at the 209A proceedings, demonstrates that the claim against Walton is based on the exercise of her right to petition.

        However, Fabre asserts that it is not Walton's petitioning activity that is the subject of his claim, but rather her "ulterior motive" in pursuing the 209A complaint. He asserts that "there is evidence that [Walton] utilized the abuse prevention process for an ulterior purpose," thereby giving rise to an abuse of process claim that is not "based on" Walton's petitioning activities alone. In support of his position, Fabre submitted two affidavits in opposition to Walton's motion to dismiss. In one of these affidavits, Fabre denies that he ever physically abused, threatened, harassed, or gave Walton reason to fear him, and further states that:

        "[Walton's friend] came over to my apartment that day to meet [Fabre's roommate] for lunch. She didn't want [Walton] to know about her visit and told me in front of [the roommate]: `[Fabre], [Walton] told me she's not doing this because she is scared or feels threatened. She said she's doing this so that every time you have a job interview you have this against you.'"

        In the other affidavit, his roommate confirms Fabre's assertion:

        "The next afternoon [Walton's friend] came over to my apartment because we had planned to have lunch. [Fabre] had just returned from France and he and [Walton's friend] talked. I was present for most of that conversation and heard her say something to the effect that [Walton] had told her she was not filing for the restraining order because she was scared of [Fabre] but was doing it so that there would be a permanent mark on his record that would show up on future job applications."9

        A special motion to dismiss will not succeed against a "meritorious claim[] with a substantial basis other than or in addition to the petitioning activities implicated" (emphasis added). Duracraft Corp. v. Holmes Prods. Corp., supra at 167, 691 N.E.2d 935. Fabre's claim does not meet this test. Notwithstanding his allegations

Page 786

concerning the motive behind Walton's conduct, the fact remains that the only conduct complained of is Walton's petitioning activity.10 There is no "substantial basis" for the claim other than that petitioning activity.

        Having established that Fabre's complaint is "based on" Walton's petitioning activity, the burden shifts to Fabre to demonstrate by a preponderance of the evidence that Walton's petitioning activity was devoid of any reasonable factual support or any arguable basis in law. G.L. c. 231, 59H. Baker v. Parsons, 434 Mass. 543, 553-554, 750 N.E.2d 953 (2001).

        In determining whether the petitioning activity is devoid of any reasonable factual support or arguable basis in law, the statute directs the judge to consider "the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." G.L. c. 231, 59H. However, in light of the findings and the final judgment entered in the contested 209A proceedings, Fabre's pleadings and affidavits are insufficient to sustain his burden. In the absence of a successful appeal or collateral attack on the final judgment in favor of Walton, that judgment is conclusive evidence that the petitioning activity was not devoid of any reasonable factual support or arguable basis in law. The judge who extended the restraining order found, after an evidentiary hearing, that the requisites for such an order had been established by a preponderance of the evidence. By definition, something that has been established by a preponderance of the evidence cannot be devoid of any reasonable factual support or arguable basis in law.11

        The motion judge's denial of Walton's special motion to dismiss in these circumstances was error.

        3. Costs and Attorney's Fees.

        The anti-SLAPP statute requires the payment of attorney's fees and costs if the judge allows a special motion to dismiss. G.L. c. 231, 59H. "The purpose of the statute is to reimburse persons for costs and attorney's fees if a judge determines that the statute is applicable and allows their motion to dismiss." McLarnon v. Jokisch, 431 Mass. 343, 350, 727 N.E.2d 813 (2000).

        Walton included a request for an award of costs and reasonable attorney's fees in her special motion to dismiss. Walton renewed her request for an award of costs and reasonable attorney's fees in her G.L. c. 211, 3, petition. In light of our reversal of the denial of her motion, Walton is entitled to costs and reasonable attorney's fees related to the District Court proceedings. G.L. c. 231, 59H. She also requested costs and attorney's fees related to this appeal. "This is the appropriate procedure for a party seeking costs and fees for appellate work," McLarnon v.

Page 787

Jokisch, supra at 350, 727 N.E.2d 813, and her request is allowed.

        4. Conclusion.

        The judgment of the District Court is reversed, and the case is remanded for the entry of judgment consistent with this opinion and for the award of costs and reasonable attorney's fees as required by G.L. c. 231, 59H. In addition, Walton may apply to the single justice for an award of appropriate attorney's fees and costs in connection with the appeal. See McLarnon v. Jokisch, supra.

        So ordered.

---------------

Notes:

1. The Attorney General, intervener.

2. The judge concluded the hearing by finding that: "[B]ased on the credible evidence and the reasonable inferences that I draw from that evidence, and I remind you that the only issue before me this morning was whether or not [the plaintiff] had demonstrated by a preponderance of the evidence that she requires the continued protection of this Court in the form of a restraining order. Based on the credible evidence and reasonable inferences that I draw from that evidence, I am going to extend this restraining order for a period of six months."

3. The elements of the tort of abuse of process are: "(1) `process' was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage." Vittands v. Sudduth, 49 Mass.App. Ct. 401, 406, 730 N.E.2d 325 (2000), quoting Kelley v. Stop & Shop Cos., 26 Mass.App.Ct. 557, 558, 530 N.E.2d 190 (1988). "More specifically, abuse of process has been described as a `form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money.'" Vittands v. Sudduth, supra, quoting Cohen v. Hurley, 20 Mass.App.Ct. 439, 442, 480 N.E.2d 658 (1985). "The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which liability is imposed. ..." Kelley v. Stop & Shop Cos., supra, quoting Restatement (Second) of Torts 682 comment a (1977).

4. The motion was captioned as both a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), and a special motion to dismiss pursuant to the anti-SLAPP statute.

5. Rule 5 of the Dist./Mun. Cts. Rules for Appellate Division Appeal (2001) provides that: "a judge may, in his or her discretion, report a judgment, interlocutory or other ruling, finding or decision for determination by the Appellate Division."

6. "The objective of SLAPP suits is not to win them, but to use litigation to intimidate opponents' exercise of rights of petitioning and speech." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161, 691 N.E.2d 935 (1998), citing Wilcox v. Superior Court, 27 Cal.App.4th 809, 816-817, 33 Cal.Rptr.2d 446 (1994).

7. To the extent our decision is inconsistent with the Appeals Court decision in Kalogianis v. Leone, 50 Mass.App.Ct. 910, 911, 740 N.E.2d 645 (2000), that decision is overruled.

8. To prevent further litigation, which would create an additional burden on the petitioner, we review the denial of the motion rather than remanding it to the Appeals Court.

9. Walton also submitted an affidavit, in which she averred that her friend told her that she never said what Fabre and Fabre's roommate claim in their affidavits.

10. Fabre does not claim that Walton made subsequent use of the 209A order to coerce or obtain a collateral advantage or for some other illegitimate purpose.

11. Fabre could have appealed from the 209A order to the Appeals Court, see, e.g., Zullo v. Goguen, 423 Mass. 679, 682, 672 N.E.2d 502 (1996), or if he had evidence that Walton committed fraud, made misrepresentations to the court, or engaged in other misconduct during the 209A proceedings (which is the essence of his claim), he could have filed a motion pursuant to Mass. R. Civ. P. 60(b), 365 Mass. 828 (1974), which "sets forth a comprehensive framework for obtaining relief from a final judgment or order, balancing the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435 Mass. 396, 399-400, 758 N.E.2d 132 (2001). Fabre did neither.

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