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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.