Am. Venture 594 Corp. v. A. Russo & Sons, Inc.

82 Mass.App.Ct. 1115

974 N.E.2d 1168

AMERICAN VENTURE 594 CORPORATION

v.A. RUSSO & SONS, INC., & another.¹

No. 11–P–1790.

Appeals Court of Massachusetts.

October 3, 2012.

OPINION TEXT STARTS HEREBy the Court (KAFKER, KATZMANN & HANLON, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendants, A. Russo & Sons, Inc., and Michael Russo, trustee (collectively, Russo), appeal from an order denying their G.L. c. 231, § 59H (anti-SLAPP), special motion to dismiss. The underlying facts are set forth in detail in American Venture 594 Corp. v. A. Russo & Sons, 79 Mass.App.Ct. 770 (2011). Very briefly, American Venture 594 Corporation (American Venture) and Russo are commercial neighbors in Watertown; they both have easement rights over a common driveway. In the late 1990s, Russo applied for zoning relief so that it could greatly expand its business enterprises. This caused American Venture concern and it objected, later filing an action in the Land Court to block Russo's attempted expansion. The Land Court action settled in the late 1990s when American Venture agreed to support Russo's application to the Watertown zoning board of appeals (board); in return, Russo agreed that it would honor certain restrictions on its use of the parties' common driveway (mostly, limiting Russo's driveway use to certain daytime hours and limiting the number and type of trucks that could access the driveway). The board then granted Russo's requested relief, incorporating into its decision the parties' agreed restrictions on driveway use. In 2006, Russo again applied to the board for zoning relief so that it could again expand its business. American Venture again objected, pointing out that the relief requested by Russo would, in effect, abrogate or violate the parties' earlier settlement agreement. Nonetheless, the board granted Russo's requested relief. American Venture then filed suit in the Land Court to annul the board's action; the Land Court judge agreed with American Venture, generally concluding that the board's 2006 action exceeded its authority because, in effect, that action authorized Russo to breach the parties' settlement agreement. The Land Court judge then vacated the board's decision and remanded the matter back to the board. This court affirmed the Land Court's judgment, concluding that the “terms of the agreement ... [were] unambiguous.” Id. at 774. We further stated, “Only one reasonable or plausible interpretation of the agreement can be maintained, i.e., that the restrictions in paragraph 3 remain enforceable against Russo.” Id. at 775.

The present action is one brought by American Venture against Russo, alleging that Russo's attempts to terminate or breach the parties' settlement agreement through application to the board, rather than through negotiations with American Venture or judicial declaration, constitute an unfair trade practice in violation of G.L. c. 93A. Russo, in its G.L. c. 231, § 59H, motion, contends that American Venture's action constitutes an attempt to deter Russo from engaging in protected petitioning activities. After a hearing, the motion judge concluded that...