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Vittands v. Sudduth6/15/2000
Essex.
November 8, 1999.
Practice, Civil, Summary judgment, Costs, Frivolous action. Abuse of Process. Emotional Distress. Negligence, Emotional distress. Trust, Nominee trust, What constitutes. "Anti-SLAPP" Statute.
Civil action commenced in the Superior Court Department on June 2, 1994.
The case was heard by Howard J. Whitehead, J., on a motion for summary judgment, and a special motion to dismiss was heard by him.
Pro se defendant Judith Sudduth, also plaintiff-in-counterclaim, contends that a Superior Court judge erred in granting summary judgment on her counterclaims for abuse of process and intentional infliction of emotional distress, and in denying her costs under the Declaratory Judgment Act, G. L. c. 231A, and Mass.R.Civ.P. 11(a), 365 Mass. 753 (1974). The plaintiffs, also defendants-in-counterclaim, appeal from the denial of their special motion to dismiss brought pursuant to G. L. c. 231, ยง 59H, popularly known as the anti-SLAPP statute.
Facts and procedural history. At the heart of this case is lot 4A, apparently a quite desirably situated lot with ocean views, located on Hesperus Avenue in the Magnolia section of the city of Gloucester (city). Sudduth, as trustee of the Hesperus Avenue Realty Trust, purchased the six-lot subdivision containing lot 4A in 1985 and sought to develop the subdivision for residential use. By 1994, after approximately nine years of proceedings, Sudduth had obtained from the city and the Commonwealth all of the necessary building and sewage disposal permits that would allow construction of residences on the subdivision finally to go forward.
The plaintiffs are neighbors but not abutters to lot 4A. Sudduth alleges in affidavit form that several of the plaintiffs (the neighbors) confronted her from time to time, informing her that they would never allow anything to be built on lot 4A, that their children had always played on it, and that the neighbors considered it their "private park." According to Sudduth, one of the neighbors, Jekabs P. Vittands, told her in 1985 that he was going to "take" all her land and later told her that he would prevent the construction of anything on the Hesperus Avenue lots at all costs. The neighbors state that they had been "involved in a series of administrative proceedings and litigation involving the development of Lots 4A, 5A and 6A." Indeed, we had occasion several years ago to observe that the neighbors had been "actively opposing the development of the defendant's property for nine years." See Vittands v. Sudduth, 41 Mass. App. Ct. 515, 515 n.3 (1996) (Vittands I).
In November, 1993, the neighbors' attorney, Brian Cassidy, allegedly discovered for the first time that the city board of health (board) had granted Sudduth an on-site sewage disposal permit in December, 1992. Cassidy had represented the neighbors in matters relating to Sudduth's property since 1989, including the litigation mentioned above. After his discovery, Cassidy sent a letter to the board on December 3, 1993, alleging that the sewage disposal system was in violation of board regulations and requesting a review of the situation. The board never responded to this letter.
On May 11, 1994, Sudduth entered into a purchase and sale agreement for lot 4A with Great Pond Builders. According to Sudduth's affidavit, the sale was to close on July 18, 1994, and the sale proceeds would be her only source of income at that time. Sudduth contends that Great Pond Builders informed her that the neighbors, aware of this pending sales agreement, had trespassed onto her land in order to harass individuals from Great Pond Builders as well as other potential buyers.
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